Benson Hardware Co. v. Jones

• Decision Date: 14 May 1931
• Docket Number: 4 Div. 534.
• Citation: 135 So. 441,223 Ala. 287
• Parties: BENSON HARDWARE CO. v. JONES.
• Court: Alabama Supreme Court

135 So. 441

223 Ala. 287

BENSON HARDWARE CO. v. JONES.

4 Div. 534.

Supreme Court of Alabama

May 14, 1931

Rehearing Denied June 25, 1931.

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Bill to remove cloud from title by H. R. Jones against the Benson Hardware Company, with a cross-bill by respondent. From a decree for complainant, respondent appeals.

Reversed and remanded.

R. H Jones and Powell, Albritton & Albritton, all of Andalusia for appellant.

E. O. Baldwin, of Andalusia, for appellee.

SAYRE J.

Appellee filed the bill in this cause to remove a cloud upon his title making appellant party defendant. Appellant had recovered judgment against C. C. Wilson in an action commenced January 15, 1929, in which it sought a lien according to the statute which gives a lien for material furnished for any building or improvement upon land. Code, § 8832 et seq. Appellee in this cause intervened in that, setting up title acquired from one Ellison December 26, 1928, alleging that Ellison had acquired his title by deed from Wilson November 3, 1928. But on a later date appellee was allowed to withdraw his petition of intervention without prejudice. October 28, 1929, appellant recovered judgment against Wilson declaring a lien for the amount thereof. At a sale of the property under a writ of venditioni exponas, appellant, March 3, 1930, became the purchaser, and, later, March 5, 1930, appellee in this cause, Jones, filed his bill to quiet his title.

Appellant did what was necessary to perfect a lien according to the statute for the price of the materials furnished and labor done by it on the property, the dwelling, under contract with the owner at the time. Appellant, in its action in the court of law, recovered judgment and a lien as against the party defendant in that cause, the owner with whom its contract was made, for the value of the work done and material furnished for repairing, altering, or beautifying the dwelling on the premises. Code, § 8832. For the satisfaction of that judgment and lien the property was sold at public outcry and purchased by appellant. Appellee was fully informed as to that proceeding, and had at one time intervened for the assertion of his rights as a purchaser of the property, but, at a later date and before judgment rendered, had withdrawn his appearance and was not a party to the judgment rendered. After appellant had purchased the property under process against Wilson, appellee filed his bill to quiet his title, averring, to state his case in brief, that he, or his immediate vendor, had purchased the property before the sale under the judgment of the court and calling upon appellant to propound its title, whereupon on final hearing the court declared appellant's title, acquired in virtue of the sheriff's sale, to be a nullity, and ordered a cancellation of the deed executed in pursuance thereof and dismissing appellant's cross-bill in which it had set up the title thereby acquired.

The crucial question presented by the record is whether appellee or his immediate vendor, had notice when he purchased from Wilson of the facts which, under the statute, confer a lien for work done and material furnished for repairing and beautifying the property. The alleged lien was, at the time when appellee's vendor purchased from Wilson and when appellee acquired his title, not yet perfected; the necessary declaration had not been filed with the judge of probate as provided by ...