City of Birmingham v. Emond

• Decision Date: 09 April 1931
• Docket Number: 6 Div. 723.
• Citation: 223 Ala. 20,134 So. 622
• Parties: CITY OF BIRMINGHAM v. EMOND.
• Court: Alabama Supreme Court

134 So. 622

223 Ala. 20

CITY OF BIRMINGHAM v. EMOND.

6 Div. 723.

Supreme Court of Alabama

April 9, 1931

Judgment Corrected May 14, 1931.

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

Bill for injunction, etc., by R. L. Emond against the City of Birmingham. From a decree for complainant, respondent appeals.

Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

Murphy Hanna, Woodall & Lindbergh, of Birmingham, for appellee.

SAYRE J.

Appellee held a mortgage for $1,750 on a parcel of land the property of the Mutual Real Estate Company. The city of Birmingham, in which the land is located, procured in the court of probate a judgment condemning the right of way for a street through the mortgaged property. Appellee, whose mortgage had been duly recorded, had no notice of the proceeding at the end of which the city paid $1,000, the assessed value of the property taken, into the court whence it was delivered to the real estate company. That part of the property not taken was in the shape of a parallelogram (approximate) 423 feet long, 35 feet wide at one end, 10 feet at the other. Appellee's bill sought an injunction and, in the alternative, such other relief as might be appropriate. No injunction was issued, but the court, on final hearing, decreed that complainant appellee, have and recover the sum of $1,000, and that, in the event defendant, appellant, failed to pay said sum into the registry of the court for the use and benefit of complainant, the cause be retained for such further orders and decrees as might be deemed necessary to enforce payment but, in the event defendant paid the said sum into court, the complainant should credit the mortgagor with that sum.

The opinion here is that the chancellor correctly disposed of the controversy. Appellee's mortgage debt was not yet due but his security was in process of serious impairment. That part of the property taken was being graded and paved for use as a street; the remainder was of such dimensions as to be worth little for any use to be anticipated in that neighborhood. The court in the exercise of its equity jurisdiction had the right, on the mortgagee's suggestion, to apportion the lien of his debt between that part of the property taken for public use as a street and the part not so taken. The right to condemn for public use could not be deferred, nor could the lien of appellee's mortgage be destroyed...