Birmingham Building & Loan Ass'n v. Boggs

• Decision Date: 07 December 1897
• Citation: 116 Ala. 587,22 So. 852
• Parties: BIRMINGHAM BUILDING & LOAN ASS'N v. BOGGS.
• Court: Alabama Supreme Court

22 So. 852

116 Ala. 587

BIRMINGHAM BUILDING & LOAN ASS'N v. BOGGS.

Supreme Court of Alabama

December 7, 1897

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by J. W. Boggs against the Birmingham Building & Loan Association. Judgment for plaintiff, and defendant appeals. Reversed.

Smyer &amp Smyer, for appellant.

John H Miller, for appellee.

COLEMAN J.

The action is ejectment, and the appellee, Boggs, who was plaintiff, relies upon a title derived from the enforcement of a mechanic's lien, and the appellant claims title through a mortgage foreclosure; and the question involves the priority of liens. The meritorious facts may be substantially stated as follows: One Garrison, the owner, entered into an agreement with one Westbrook to erect for him a dwelling upon lots numbered 6 and 7. In pursuance of the agreement Westbrook, who had contracted to furnish the material purchased from the Hawkins Lumber Company certain material and began the construction of the building. During the progress of the work, Garrison ascertained that he had mistaken the location of his lots, 6 and 7, and that the improvements were being made upon lots 8 and 9, to which lots he had no title, and in which he owned no interest. He was a mere trespasser upon these lots. He immediately suspended work, and it appears that Westbrook never afterwards performed any other services or procured any additional material. One Thweatt, a resident citizen of Talladega, a distant county, owned lots 8 and 9, and Garrison began arrangements for the purchase of these lots from the owner. Not having the money to pay for them, he applied to the Birmingham Building & Loan Association for a loan, which association agreed to advance him a sufficient amount. The agreement upon which the money was advanced or loaned seems to have been as follows: Thweatt executed a deed to Garrison, which was not to be delivered until the purchase money was paid, and for this purpose the deed was sent by express to Birmingham. Garrison executed a mortgage upon lots 8 and 9 to the building and loan association, and upon the execution of the mortgage by Garrison the loan company paid over the money to Thweatt, and received the deed from the express company, and delivered it to Garrison. After completing the purchase of lots 8 and 9 upon the terms stated, Garrison proceeded with the construction of the improvements, and for this purpose...