Byrum Hardware Co. v. Jenkins Bldg. Supply Co.

• Citation: 147 So. 411,226 Ala. 448
• Decision Date: 16 March 1933
• Docket Number: 6 Div. 222.
• Parties: BYRUM HARDWARE CO. v. JENKINS BLDG. SUPPLY CO.
• Court: Alabama Supreme Court

147 So. 411

226 Ala. 448

BYRUM HARDWARE CO. v. JENKINS BLDG. SUPPLY CO.

6 Div. 222.

Supreme Court of Alabama

March 16, 1933

Rehearing Denied April 13, 1933.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to enforce a materialman's lien by the Jenkins Building Supply Company against the Byrum Hardware Company and others. From the decree, the named respondent alone appeals.

Affirmed.

Fred G Moore, of Birmingham, for appellant.

Howze &amp Brown, of Birmingham, for appellee Equitable Life Assur. Soc.

THOMAS Justice.

This appeal is by Byrum Hardware Company, and it alone assigns errors.

The bill by Jenkins Building Supply Company, a corporation, was against the named individuals and the mortgagee, Equitable Life Assurance Society of the United States, a corporation Benson Paint & Varnish Company, a corporation, Merit Oak Flooring Company, and Byrum Hardware Company, corporations seeking a superior lien to the mortgage, and other claimants as materialmen.

There were answers and cross-bills by Benson Paint & Varnish Company and Byrum Hardware Company, seeking establishment of their liens and asking that the same be declared superior to the mortgage of the Equitable Life Assurance Society "against said real estate and the building and improvements thereon," and "superior to the liens, claims, mortgages, title and encumbrances of any of the respondents or cross-respondents" who were the several named respondent corporations and individuals named in the original and cross-bills.

The demurrers to the several pleadings were overruled.

The mortgagor, A. L. Abel, answered the amended bill and denied that he was the owner of the lot; denied that he entered into a contract with the owners of the land for the furnishing of building material to be used in the erection of the building on the premises, or that complainant furnished the same in accordance with the terms of the agreement; "that the same were sold to him by complainant" and not sold to Bernettie Abel, who "did not contract for any materials" and who was under "no legal obligation" to pay for the same, and that she was "not indebted to the complainant in any sum whatsoever." This answer, in substance, was likewise made to the respective cross-bills. The respective answers of Bernettie Abel were of like import.

The answer of Equitable Life Assurance Society of the United States, J. I. Harden, and C.J. Donald (owners of the land), was to the effect that "for answer to the bill of complaint filed against them in this cause, say that the said The Equitable Assurance Society of the United States has a valid mortgage on the property described in the bill of complaint, securing a loan of $5,500.00, which mortgage is a lien on said property prior to the alleged lien of complainant and they admit paragraph seven of the bill, and they deny each and every other allegation of said bill."

The bill was amended and the answer of Equitable Life Assurance Society of the United States, the above-named mortgagee, was, in part, as follows:

"* * * That some time prior to November 4, 1929, Bernettie Abel applied to this respondent for a mortgage loan on the property described in the bill and her application was later accepted; that she furnished to the respondent an abstract of title to the property brought down to date, which abstract showed the legal title to said property to be in C.J. Donald and J. I. Harden, subject to a mortgage to the Tutwiler Investment Company, which mortgage was filed for record in the office of the Judge of Probate for Jefferson County, Alabama, in May 19, 1926, and recorded in Volume 1578, Page 119, said mortgage being for the sum of to-wit: $74,000.00, and provided that the property described in the bill could be released therefrom upon the payment of $750.00. The attention of the said Bernettie Abel was called to the fact that she did not have title to said property and she stated that she would obtain a deed to it from Harden and Donald at the time the loan was closed; that she would pay the purchase price of said property from the proceeds of the mortgage loan to be made her by the respondent; that on, to-wit, November 4, 1929, the said Bernettie Abel came to the office of Howze & Brown, attorneys for the respondent, and said loan was closed, that at said time Harden and Donald delivered the deed and at the direction of the said Bernettie Abel the respondent paid to the said Harden and Donald the sum of $3180.00, which was the purchase price of said property; that the balance of the sum of $5,500.00 was paid to the said Bernettie Abel by the respondent.

"Respondent avers that its dealings were with Bernettie Abel and it denies that the said A. L. Abel had or owned any interest in said property. That at the time said building material was furnished by the complainant the title to said property was in Harden and Donald, and that the title to said property was not conveyed to the said Bernettie Abel until to-wit, November 4, 1929, when the respondent paid the purchase price of said property out of the proceeds of said mortgage loan, and respondent avers it is subrogated to the rights of Harden and Donald on account of the payment of said purchase price."

The cause, on pleading and proof, was held for decree which was to the effect, first, that Bernettie F. Abel was indebted to the several complainants and cross-complainants, of whom was Byrum Hardware Company, in the sums indicated; second, that she be allowed five days to pay same into the registry of that court; and, third, in the event she fails or refuses to comply with this allowance, the property will be ordered sold for the purpose of satisfying the decree; and, fourth, after deducting the costs herein accrued, the register will distribute the proceeds of said sale as follows: "* * * Will pay over to the Equitable Life Assurance Society of the U.S. the sum of Thirty One Hundred Eighty ($3,180.00) Dollars, together with interest thereon at the legal rate from November 5, 1929, to the date of such payment, said amount consisting in the sum of Fifteen Hundred Thirty ($1,530.00) Dollars disbursed to the Birmingham Mortgage & Loan Company, and the sum of Sixteen Hundred Fifty ($1,650.00) Dollars disbursed to J. I. Harden and C.J. Donald by the Equitable Life Assurance Society of the U.S. out of the proceeds of the loan made by that Society to the respondent, Bernettie F. Abel"; that the register will then distribute any "sum remaining in her hands" to the complainants and cross-complainants "in proportion to the amounts of their respective claims" as decreed; that the mortgagee and several complainants may bid at such sale, in the event a sale thereof is had, "and if either of said parties is the successful bidder for said property at such sale, the amount of its bid shall be credited with the amount of its claim as herein decreed"; that "in the event the Equitable Life Assurance Society of the U.S. is the successful bidder for said property at such sale * * * the amount of its bid shall be credited with the amount of its claim as herein decreed, and said Society shall be required to pay into Court only the cost herein accrued"; the cause was retained for further orders and decrees.

Security for costs was deposited by Byrum Hardware Company, Inc., for "appeal to the Supreme Court." Citation of appeal to the other parties is shown to have been properly executed. There was no supersedeas bond given; the sale was made by the register after due notice thereof, and so reported that "Equitable Life Assurance Society of the United States was the highest and best bidder and became the purchaser of the hereinabove described property for and at the sum of $3,270.70, and claiming a credit on said purchase price in the sum of $3,180.00 has only paid into Court the sum of $90.70, being the costs of Court. March 15th, 1932."

The decree of confirmation of the report and sale recited, that there being no objections filed thereto, said report "is in all things ratified and confirmed"; that "the register execute and deliver to the Equitable Life Assurance Society of the United States, the purchaser, a proper deed of conveyance in and to the following described real estate," indicated as that of the subject-matter of this suit.

It is provided by statute that unless a supersedeas bond is given there is no stay of the execution of the judgment rendered (as here for the payment of money and for other acts) pending the appeal; that is, that the judgment may be executed and enforced. Sections 6131, 6133, Code; Montgomery Gaslight Co. v. Merrick & Sons, ...