Allen v. Evans
| Decision Date | 17 December 1925 |
| Docket Number | 4 Div. 218 |
| Parties | ALLEN et al. v. EVANS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.
Bill in equity by E.A. Evans against Bristow Allen and the Dothan National Bank. From a decree on demurrer, respondents appeal. Affirmed.
Lee & Tompkins, of Dothan, for appellants.
O.S Lewis, of Dothan, for appellee.
The bill in this cause, filed by appellee against appellants discloses that the complainant is a judgment creditor of respondent Bristow Allen, with a lien, which lien, however, is subordinate to the mortgage executed by said Allen to respondent Dothan National Bank. As pointed out by the learned chancellor in his opinion which accompanies the decree, the bill is not one seeking an enforced foreclosure of the senior mortgage, or a sale of the property for the application of the proceeds first to the payment of the mortgage debt and the excess in satisfaction of complainant's lien. Relief of this character to junior incumbrancers has been denied in numerous decisions. United States Fidelity & Guaranty Co. v. Singleton, 206 Ala. 437, 90 So. 296, and authorities there cited. "His remedy is to redeem the land from the senior incumbrance, and then proceed to enforce his lien upon the land for his reimbursement of the redemption money, and the satisfaction of his own demand." Mims v. Cobbs, 110 Ala. 577, 18 So. 309.
The complainant here has brought his case within the influence of this principle and has pursued the course pointed out as correct in Kelly v. Longshore, 78 Ala. 203, expressed in the headnote as follows:
"A subsequent judgment creditor of the mortgagor, having acquired a lien on the equity of redemption, by placing an execution on his judgment in the hands of the sheriff, may redeem from the mortgagee or his assignee, and then foreclose the mortgage, not only for the payment of the mortgage debt, but also for the payment of his unsatisfied judgment."
The bill prays an accounting for the ascertainment of the amount due on the mortgage debt of respondent Dothan National Bank, and offers to pay the same. The right of the judgment creditor with a lien to redeem from this senior incumbrance is recognized in Kelly v. Longshore, supra, and by the authorities generally. 27 Cyc. 1826.
It is insisted this bill is defective in failing to aver that complainant had tendered or offered payment before the bill was filed or any excuse for failing to do so. As to the exercise of the equity of redemption, complainant stands upon the same grounds as would the mortgagor himself, and our decisions are to the effect that such averment is material only as it affects the question of costs. It is not an averment essential to the equity of the bill. McGuire v. Van Pelt, 55 Ala. 344; Thomas v. Jones, 84 Ala. 302, 4 So. 270; Hodges v. Verner, 100 Ala. 612, 13 So. 679; 27 Cyc. 1830.
The case of Grace v. Montgomery, 207 Ala. 188, 92 So 412, cited by counsel, recognized the right of the junior incumbrancer to redeem, and on second appeal in that...
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Smith v. Cook
... ... that there is no controversy the complainant will be taxed ... with the cost. Ezzell v. First Nat. Bank, 218 Ala ... 462, 119 So. 2; Allen v. Evans, 214 Ala. 106, 106 ... So. 601; McGuire v. Van Pelt, 55 Ala. 344. A bill ... for reformation will not be stricken on demurrer for failure ... ...
- Leahy v. State
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Edmondson v. Martin, 7 Div. 51
...himself to the jurisdiction of the court and offers to pay the amount due. Hodges v. Verner, 100 Ala. 612, 13 So. 679; Allen v. Evans, 214 Ala. 106, 106 So. 601. In the case at bar as pointed out there was no demurrer to the bill. Dewey Edmondson filed his answer admitting all the allegatio......