City of Eufaula v. Alabama Power Co.

• Decision Date: 17 December 1936
• Docket Number: 4 Div. 903
• Parties: CITY OF EUFAULA v. ALABAMA POWER CO. et al.
• Court: Alabama Supreme Court

171 So. 368

233 Ala. 257

CITY OF EUFAULA v. ALABAMA POWER CO. et al.

4 Div. 903

Supreme Court of Alabama

December 17, 1936

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Suit in equity by the City of Eufaula against the Alabama Power Company and another. From a decree sustaining a demurrer to the bill and transferring the cause to the law side of the court, complainant appeals and applies for mandamus.

Mandamus denied; appeal dismissed.

O.S Lewis and E.S. Thigpen, both of Dothan, for appellant.

Chauncey Sparks and McDowell & McDowell, all of Eufaula, and Martin Turner & McWhorter and Wm. M. Moloney, all of Birmingham, for appellees.

GARDNER Justice.

Following reversal of the cause on former appeal (Alabama Power Co. v. City of Eufaula, 232 Ala. 473, 168 So. 661) complainant's bill was amended to seek the enforcement of a vendor's lien, and as last amended the chancellor sustained a demurrer thereto for want of equity, transferring the cause to the law side of the docket. Section 6492, Code 1923.

To review the ruling on such a decree, mandamus in lieu of appeal is the appropriate remedy. Jones v. Wright, 220 Ala. 406, 125 So. 645. The appeal will be dismissed. As to the mandamus proceedings, we have not overlooked the insistence that for matters subsequently occurring and here presented, this remedy for review is also barred. But we pass that question by without determination, for the reason that a consideration of the cause upon the merits settles the entire matter, and with like result.

The argument for appellant indicates a misconception of the holding of this court on former appeal. In the opinion it was stated that complainant sought "to establish and enforce an equitable mortgage," and counsel lay stress upon such statement upon the theory that a distinction was here observed between an equitable mortgage and a vendor's lien, and that the enforcement of the latter was the proper remedy. But the opinion enters into no discussion of this distinction.

A vendor's lien expressly reserved by the very terms of the contract is not a vendor's lien arising by implication of law, "but is created by, and dependent on contract--a contract that the land shall be charged with a lien until the purchase-money is paid." Kyle v. Bellenger, 79 Ala. 516. "Such a reserved lien is regarded as partaking of the nature of an equitable mortgage." Cobb v. Stinson, 229 Ala. 78, 155 So. 586, 587.

The lien sought here to be enforced was expressly reserved in the contract between the parties, and on former appeal the holding was that it was expressly so reserved to protect the stated purchase price of $50,000, and nothing more. That complainant had sought the proper remedy of enforcement of an equitable mortgage was not questioned, but the ruling was rested upon the merits of the cause, which involved a proper construction of the contract of the parties, all substantial elements of which were then before the court. The opinion contains no dictum whatever, and reduced to the last analysis, as we view this appeal, it is in effect but an assault upon the conclusion of the court on former appeal. And in the light of argument of counsel for appellant, we have reread the deed with all attendant contracts and resolutions, all of...