Becker Roofing Co. v. Farmers' & Merchants' Bank of Piedmont

• Decision Date: 19 March 1931
• Docket Number: 7 Div. 5.
• Citation: 223 Ala. 132,134 So. 635
• Parties: BECKER ROOFING CO. v. FARMERS' & MERCHANTS' BANK OF PIEDMONT ET AL.
• Court: Alabama Supreme Court

134 So. 635

223 Ala. 132

BECKER ROOFING CO. v. FARMERS' & MERCHANTS' BANK OF PIEDMONT ET AL.

7 Div. 5.

Supreme Court of Alabama

March 19, 1931

Rehearing Denied May 28, 1931.

Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.

Bill to enforce a materialman's lien by the Becker Roofing Company against E. J. Webb and the Farmers' &amp Merchants' Bank of Piedmont. From a decree for respondent Bank, complainant appeals.

Affirmed.

Chas F. Douglass, of Anniston, for appellant.

Merrill Jones & Whiteside, of Anniston, for appellee.

ANDERSON C.J.

This bill was filed to enforce a materialman's lien upon the land upon which the improvement was made, and to have said lien declared superior to respondents' mortgage, and to, in effect, cancel said mortgage so far as it relates to the homestead for the fact that said mortgage was invalid for the reason therein set forth, and this the complainant had the right, as a lienor, to question. Reid v. Allen, 183 Ala. 582, 62 So. 801.

The validity of the complainant's claim and lien is not seriously questioned; the contention being that it was subsequent and subordinate to respondents' mortgage. While the mortgage is prior to the complainant's lien, it was inoperative as to so much of the land that was the homestead, as there was no valid, separate acknowledgment of the wife. There was an acknowledgment before a notary, but he was an official and stockholder in the bank, and interested, and the acknowledgment was void, and the mortgage was of no validity as to the homestead which could not have been conveyed except by a legal, separate acknowledgment. Hayes v. Southern Home B. & L. Ass'n, 124 Ala. 663, 26 So. 527, 82 Am. St. Rep. 216; Walker v. Baker, 199 Ala. 310, 74 So. 368.

True, it has been held that this point cannot be raised on collateral attack (Monroe v. Arthur, 126 Ala. 362, 28 So. 476, 85 Am. St. Rep. 36), but, as pointed out in said case, the infirmities inhering in the execution of the mortgage can be shown upon direct attack on its validity, by which is intended some proceeding begun and prosecuted for the express purpose of having the conveyance adjudged void and canceled. While the present bill seeks to enforce the complainant's lien, it seeks as an incident thereto the cancellation of the mortgage in so far as it relates to the homestead, and to this extent is a direct attack. See, also, Jenkins v. Jonas Schwab Co., 138 Ala. 664, 35 So. 649.

We have many cases which enforce the equitable doctrine that he who seeks to cancel a mortgage because of its invalidity through a court of equity must do equity by restoring, as a condition precedent, all consideration or value that may have been thereby acquired. Sumners v. Jordan, 220 Ala. 402 125 So. 642; Forman v. Thomas, 202 Ala. 291, 80 So. 356; Mitchell v. Baldwin, 154...