[Langley et al. v. Andrews.] 4. Execution of written instrument; what constitutes duress rendering instrument voidable.-It is not the threat of a criminal prosecution in any case that constitutes duress which is deemed sufficient to avoid contracts, or to render invalid the execution of a written instrument, but the threat of criminal prosecution must be of such a nature and made under such circumstances as to constitute a reasonably adequate cause to control the will of the threatened person, and must have that effect, and the acts sought to be voided must be performed by said person while in such condition. Same; duress; ratification.-A contract made under duress is only voidable and, therefore, the party upon whom duress has been imposed subsequently recognizes the validity of the contract involved, either by making payments thereon or otherwise, he will be held to have elected to waive the duress and ratify the contract. 5. 6. Mortgage; stipulation for payment of attorney's fee. The provision contained in a mortgage that the proceeds of the sale from the mortgage should be devoted, first, to the payment of the expenses of said sale, "including a reasonable attorney's fee for collecting said sum, whether by foreclosure of under order of sale, or by proceedings in court or otherwise," is sufficient to authorize the allowance of an attorney's fee for filing a bill in equity to foreclose said mortgage. APPEAL from the Chancery Court of Tallapoosa. The appeal in this case is prosecuted from a final decree granting the relief prayed for by the complainant. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. JAMES W. STROTHER, for appellant.-An attorney's fee cannot be allowed for a foreclosure in equity unless there is shown a necessity for resorting to that method.-Bedell v. Mortgage Co., 91 Ala. 325; Am. &c. Mortgage Co. r. McCall, 96 Ala. 200. The defnse of duress being fully made out, respondent Langley was entitled to a decree dismissing complainant's bill; a contract, the execution of which was induced by threats of criminal prosecution and imprisonment, is void; and it makes no difference whether the threats were of lawful or of unlawful imprisonment, this is equally true.-Hartford Fire Ins. Co. v. [Langley et al. v. Andrews.] Kirkpatrick, Dunn & Co., 111 Ala. 456, and authorities therein cited.-Morse v. Woodworth, 155 Mass. 251, which is cited with approval and quoted from extensively in the above case is a very strong authority in support of the contention here made and fully supports the insistence of the appellant on this point.-See also Brown v. Pierce, 7 Wall. (U. S.) 215; Fillman v. Ryan, 168 Past. 484; Heckman v. Swartz, 64 Wis. 48; Phelps v. Zuschlag, 34 Tex. 371. E. M. OLIVER, contra.-It is true that, as a rule, the answer of a defendant cannot be read as evidence against a co-defendant, but there are exceptions. In cases, however, where the right of the plaintiff as against one defendant, is only. prevented from being complete by some question between the plaintiff and a second defendant, the plaintiff is permitted to read the answer of such second defendant for the purpose of completing his claim against the first.-1 Dan. Ch. Pr., 4 Ed. 842, Chap. 22, sec. 1; McLane v. Riddle, 19 Ala. 180; Green v. Casey, 70 Ala. 417. The evidence is not sufficient to avoid the mortgage on the ground of duress.-Wildsmith v. Tracy, 80 Ala. 258. DENSON, J.-On the 16th day of June, 1904, W. T. Langley executed to one A. H. Slaughter, his note under seal in the sum of twenty-five hundred and seventy-nine and 68-109 dollars, due October 15th, 1894, and a mortgage on certain real estate to secure said note. On the 14th day of September, 1904, the said note and mortgage were assigned by the mortgagee to S. M. Inman & Company. On the 9th day of September, 1895, S. M. Inman & Company, assigned the note and mortgage to J. E. Andrews, who as such assignee, on the 1st day of May, 1897, filed the bill in this case for the purpose of having said mortgage foreclosed. During the progress of the litigation, J. E. Andrews died, and the cause was revived in the name of Walter Andrews as the adminis trator of his estate. W. T. Langley and A. H. Slaughter, the mortgagor and mortgagee, with Sandy Rowe, James Carpenter, Leonard Rainey, T. A. Hicks and W. T. Slaughter were made par [Langley et al. v. Andrews.] ties respondent to the bill, as originally filed, it being alleged in the bill that the five last named persons were in possession of the lands involved in the litigation; that their interest was unknown but was subordinate to the mortgage. On a former appeal, it was held, that the assignment made of the mortgage to J. E. Andrews by S. M. Inman & Company, was not in requisite form to convey the legal title and, therefore, that they were necessary parties to the bill.-Langley v. Andrews, 132 Ala. 147. The bill was thereupon amended by making S. M. Inman & Company and the individuals composing the firm parties. This amendment avers that S. M. Inman & Company, is a firm having its principal place of business in Atlanta, in the state of Georgia; that said firm is composed of S. M. Inman and W. H. Inman. The respondent, Inmans and A. H. Slaughter answered the bill as last amended; in their answers they admitted all of the allegations of the bill and disclaimed any interest in the subject matter of the suit. Decrees pro-confesso were entered against all of the other respondents except W. T. Langley, and he alone defends against the bill. The defense made by Langley's answer as to the merits of the case are, that the note for the security of which the mortgage was given is wholly without consideration; that he was not indebted to the mortgagee in any sum; that the note and mortgage were executed by him under duress, and payment of the mortgage indebtedness. In the answer of Langley is incorporated a demurrer to the bill as last amended, upon the ground that the amendment making S. M. Inman & Company parties, fails to show that S. M. Inman and W. H. Inman are the only members of the firm of S. M. Inman & Company, and that there is no prayer for relief against said parties. The chancellor on final hearing rendered a final decree in which he ascertained the amount due on the note and mortgage and ordered a foreclosure of the mortgage. In the final decree the chancellor omitted to rule upon the demurrer to the bill, notwithstanding it was embraced in the respondent Langley's note of submission. [Langley et al. v. Andrews.] This omission in the decree is presented for review by the first and second assignments of error. Upon an examination of the bill as last amended, we conclude that the averments therein fully answer the demurrer, and while it may have been a more orderly course of procedure for the chancellor to have made a specific ruling upon the demurrer, yet, the demurrer being without merit, there was no error prejudicial to respondent in the omission of the chancellor to pass upon the demurrer directly. It is next contended by the respondent, appellant here, that the allegations of the amended bill were not sustained by proof, and that without such proof the final decree in favor of the complainant was erroneous. This contention, as shown by brief of counsel relates only to the averments as to S. M. Inman & Company's interest. We have shown above the amendment relating to this matter. The record shows that S. M. Inman and W. H. Inman filed answers to the bill as amended in which they admitted all the allegations of the bill, and especially do they aver in their answers that they have no interest whatever in the lands conveyed by the mortgage to complainant. "It is a general rule, with but few exceptions, that the answer of one defendant is not good against another. Yet when the right of a complainant as against one defendant is only prevented from being complete, by some question between the plaintiff and the second defendant, the answer of the second defendant may be read as evidence. Thus, if a mortgage is assigned, and the assignee files a bill against both the mortgagor and assignor, and the mortgage is proved and the assignor admits the assignment, the complainant will be entitled to a decree, notwithstanding the mortgagor may deny all knowledge of the assignment. The reason of this is, that the mortga gor has no interest in the assignment, and as the answer of the assignor estops him, the equity of the assignee is complete."-McLane & Plowman v. Riddle & Burt, 19 Ala. 180; Green v. Casey, 70 Ala. 417. In the case of Moore v. Hubbard, 4 Ala. 187, which was a suit for the settlement of partnership accounts, [Langley et al. v. Andrews.] partners who had sold their interest, were defendants to the bill, and they admitted the transfer by their answer. The court held that the answer could not be read as evidence of the transfer against the other defendants. The court commenting on this ruling in the case of McLane & Plowman v. Riddle & Burt, supra, said: "The error of this opinion consists in this, that the answer of the partners who had transferred their interest would bind them, and would always be evidence as between them and the complainant of the transfer, and they never could afterwards successfully assert their interest." So we conclude there is no merit in this contention of the appellant. The sixth assignment of error is not insisted upon in the brief and argument of counsel and we will pass it. This brings us to the consideration of the defense that the note and mortgage were given under duress: With respect to this defense, the respondent in the second paragraph of his answer makes the following averment; "Further answering said bill the respondent says, that he denies that on the 16th day of June, 1894, he was indebted to A. H. Slaughter. He admits that on said day he exccuted to said Slaughter a note and mortgage as described in said paragraph two of the bill, but he avers and alleges that said note and mortgage were obtained from him under duress by threats of criminal prosecution made to this respondent by one J. S. Akers, who was the agent of A. II. Slaughter and S. M. Inman & Company in said transaction, and he further avers that said note and mortgage to the said A. H. Slaughter were wholly and entirely without consideration because this respondent 'was not indebted to the said Slaughter in any manner, and he did not receive from the said Slaughter at the time of the execution of said note and mortgage, any money or anything else as the consideration for said note and mortgage; but this respondent avers and alleges that he was induced to sign said note and mortgage by said threats of prosecution." Certainly these averments as to duress are of a very general nature and are mere conclusions of the pleader. The character of the threats, and of the criminal prosecution is nowhere disclosed in the pleading, and we must |