(99 South. 299)
BANK OF FLORALA v. HALL.
(4 Div. 96.)
(Supreme Court of Alabama.
Feb. 14, 1924.)
Husband, and wife <&wkey;2I0(3) — Husband necessary party to wife’s action to canoe! mortgages.
In an action by a married woman to cancel mortgages on real estate of which she is alleged to be the owner on the ground that the debt secured is the debt of the husband and that plaintiff signed only as surety, where the mortgages show on their face a joint and several liability, the husband is a necessary party.
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
Bill in equity by Francis C. Hall against the Bank of Florala. From a decree overruling demurrer to the bill, respondent appeals.
Reversed and remanded.
Thigpen, Murphy & Jones, of Andalusia^ for appellant.
The husband of complainant was a necessary party, and it was error to overrule demurrer taking this point. Cudd v. Reynolds, 186 Ala. 207, 65 South. 41.
Lee & Graves, of Montgomery, and J. D. Bailey, of Florala, for appellee.
The court was in error in overruling demurrer, and error is confessed.
GARDNER, J.
Bill by the wife for the cancellation of mortgages on certain real estate, of which she is alleged to be the owner, upon the ground the debt secured is the debt of the husband, and she signed as surety only. Section 4497, Code 1907.
On the face of these mortgages a joint and several liability for the payment of the indebtedness thereby intended to be secured appears to have been assumed by complainant and her husband, T. A. Hall. The hus-bánd is not made a party of the bill, and the assignments of demurrer take the point he was a necessary party. It is conceded hy counsel for appellee, and correctly so, that these assignments of demurrer were well taken, and should have been sustained under the authority of Cudd v. Reynolds, 186 Ala. 207, 65 South. 41—a case directly in point.
The decree overruling the demurrer will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.