Espalla v. Touart

• Decision Date: 26 May 1892
• Citation: Espalla v. Touart, 11 So. 219, 96 Ala. 137 (Ala. 1892)
• Parties: ESPALLA v. TOUART.
• Court: Alabama Supreme Court

11 So. 219

96 Ala. 137

ESPALLA v. TOUART.

Supreme Court of Alabama

May 26, 1892

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN Chancellor.

Suit by Louis Touart against Joseph Espalla, Jr., to enjoin the foreclosure of a mortgage, and for other relief. From a decree granting the relief, defendant appeals. Affirmed.

Gaylord B. Clark and Francis B. Clark, Jr. for appellant.

Faith & Erwin, for appellee.

COLEMAN J.

The facts of the case are as follows: In September, 1888, Matilda Campbell, being the owner of an undivided one-sixth interest in certain real estate, executed a mortgage to Joseph Espalla, Jr. This mortgage was not recorded until the 24th of August, 1889. After the execution of the mortgage to Joseph Espalla, Jr., and before the registration, she executed a second mortgage upon the same property to Lienkauff &amp Strauss. The mortgagees of the second mortgage had no notice of the prior mortgage given to Espalla. As between Espalla and Lienkauff & Strauss the interest of the former was that of a junior mortgagee with the right to redeem. The second mortgage, the one made to Lienkauff & Strauss, contained this provision: "It is further understood and agreed that, if said property be lawfully sold for a division *** on the proceedings taken by any of the part owners thereof, that then this mortgage shall attach to and become a lien only on the share of the said Matilda Campbell in the proceeds of said sale, and the title made to the purchaser shall be free and discharged from this lien." On the 12th of July, 1889, the tenants in common filed a petition in the probate court praying that the lands be sold for partition, and a decree was rendered in that court on the 13th of August, 1889, for the sale of the land. No others than the tenants in common were parties in the probate court for a partition. On the 17th of August, 1889, Matilda Campbell made a general assignment to one Baker of all her property for the benefit of her creditors generally. On the 11th of November, 1889, the lands were sold under the decree of the probate court on partition, and Louis Touart, the complainant, became the purchaser. The purchase money having been paid, the sale was confirmed, and titles made to Touart. On the 13th of September, 1889, Lienkauff & Strauss filed their bill in the chancery court of Mobile for the enforcement of their mortgage, and after the purchase money for the lands sold under the decree of the probate court was paid over by the purchaser and the sale confirmed, they amended their bill by praying that their lien be enforced upon so much of the purchase money as was realized from the share of Matilda Campbell. Matilda Campbell and Baker, the assignee, were made parties defendant to the foreclosure bill of Lienkauff & Strauss, and at the close of the bill it was averred "that Joseph Espalla, Jr., claims to have some lien or mortgage on the property prior to that of the complainant, and that it is necessary that he should be made a party for the purpose of propounding his claim." Louis Touart was not a party to the foreclosure suit by Lienkauff & Strauss. Joseph Espalla, Jr., answered the bill of Lienkauff & Strauss setting up a prior mortgage, and attached his mortgage as an exhibit to his bill. Upon the coming in of this answer complainants amended their bill, and averred that, although respondent's (Espalla's) mortgage was of prior date, he had failed to have it recorded until after the execution of their mortgage, and that complainants were mortgagees without notice. Respondent, Espalla, answered, averring personal notice of the mortgage to complainants before the execution of their mortgage. This was an issue in that proceeding. ...