Bellenger v. Moragne

• Decision Date: 16 June 1932
• Docket Number: 7 Div. 133.
• Citation: 225 Ala. 227,142 So. 657
• Parties: BELLENGER ET AL. v. MORAGNE ET AL.
• Court: Alabama Supreme Court

142 So. 657

225 Ala. 227

BELLENGER ET AL. v. MORAGNE ET AL.

7 Div. 133.

Supreme Court of Alabama

June 16, 1932

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Bill in equity by George C. Bellenger and others, as executors of the will of W. C. Bellenger, deceased, against Leila S. Moragne deceased, and others. From a decree sustaining a demurrer to the bill, complainants appeal.

Affirmed.

Goodhue & Lusk, of Gadsden, for appellants.

O. R Hood, Roger Suttle, and M. C. Sivley, all of Gadsden, for appellees.

BROWN J.

This appeal is from the decree of the circuit court, in equity sustaining the demurrers of some of the respondents to the bill.

To state in brief the material allegations of the bill, during the years 1910, 1911, and 1912, the respondent city of Gadsden, in the exercise of its power to make local improvements and assess the cost thereof, to the extent of the benefits accruing to the abutting property from such improvements, made certain assessments against the lot in question, on which, at the filing of the bill, with accrued interest, there remained unpaid the sum of $3,300.

On October 1, 1928, Joe S. Moragne, who then owned an undivided 49/60 interest in the lot, to secure an indebtedness then owed or contracted to W. C. Bellenger, amounting to something over $35,000, his wife joining therein, executed a mortgage to Bellenger on his undivided interest in said lot, and other property, with warranty against existing liens and incumbrances.

Pending this mortgage Moragne acquired the remaining 11/60 undivided interest from the owners thereof, subject to the assessment liens held by the city of Gadsden, and died seised of the title to the entire lot, subject to the said mortgage and assessment liens.

Moragne defaulted in the payment of the mortgage executed to Bellenger, and after the death of Bellenger, the executors of his will foreclosed the mortgage and purchased the property covered by the mortgage, and in their representative capacity are the owners of said property.

The bill is one filed by the complainants as executors of the last will and testament of said W. C. Bellenger, against the city of Gadsden, Leila S. Moragne, as executrix of the will of Joe S. Moragne, deceased, and Leila S. Moragne as a devisee under said will, and others, and alleges in substance that the statutory lien in favor of the city of Gadsden arising out of said assessments for local improvements constituted a breach of the warranty incorporated in said mortgage, and complainants offering to do equity, seek to compel a sale of the 11/60 interest belonging to the estate of Moragne in satisfaction and discharge of said assessment liens.

The demurrer takes the point, among others, that the bill is without equity. If this ground is well taken, the other grounds need not be considered.

The appellants' first contention is that in these circumstances, they are entitled to have the assets of a common debtor marshaled and the proceeds applied in discharge of the paramount liens of the city of Gadsden, in protection of the title conveyed by the mortgage executed to complainants' testator and its foreclosure.

The trouble we encounter here is that Moragne was not a common debtor of the city of Gadsden and the complainants' testator or his estate. The assessment for local improvements does not create a personal liability against the property owner, but merely becomes a charge against the...