Farmer's State Bank v. Kirkland & Brackin
| Decision Date | 17 May 1917 |
| Docket Number | 4 Div. 662 |
| Citation | 75 So. 894,200 Ala. 146 |
| Parties | FARMERS' STATE BANK v. KIRKLAND & BRACKIN et al. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Henry County; O.S. Lewis, Chancellor.
Bill by the Farmers' State Bank against Kirkland & Brackin and others. Decree sustaining claim of precedence of defendant F Mayer Boot & Shoe Company, and plaintiff appeals. Affirmed.
Farmer & Farmer, of Dothan, for appellant.
J.L Pollard, of Abbeville, and Hill & Thigpen, of Dothan, for appellees.
The original bill was filed by the Farmers' State Bank, as mortgagee of E.E. Kirkland and H.L. Brackin, constituting the firm styled Kirkland & Brackin, against them and H.C. Price and F. Mayer Boot & Shoe Company, a corporation. The bill sought the foreclosure of its mortgages, the appointment of a receiver of the property of the insolvent mortgagors, and the administration of the properties of the estate to the end that those entitled and as entitled thereto might have their rights ascertained, determined, and satisfied therefrom. The Mayer Company was averred to be a judgment creditor; a certified copy thereof together with a certification of its recordation in the office of the judge of probate of Henry county being exhibited with the bill. The prayer of the original bill contained this:
"*** That the said mortgage of complainant be foreclosed, and the property embraced in it be sold for the satisfaction of said mortgage debt, with attorney's fees added thereto, and that a reference be held by the register to ascertain the amount due on said mortgage to complainant and to said H.C. Price for rent, and to F. Mayer Boot & Shoe Company under its said execution, and the proceeds of sale of said property be paid out of this court according to the equities and respective rights of all the parties thereto ***"
To the bill the Mayer Company filed an "answer" wherein it set up its judgment as "a valid lien against the estate of Kirkland & Brackin which" it alleged was "superior to the lien" of the complainant, and concluded its response to the bill with this prayer:
"Wherefore, premises considered, the respondents F Mayer Boot & Shoe Company pray that upon the consideration of said cause the court will make a decree declaring that the F. Mayer Boot & Shoe Company have a superior lien to complainants on the estate of the said Kirkland & Brackin and ordering that so much of the proceeds of said estate as may be necessary be subjected to the payment of their said judgment."
There was no pleading or response by any party to the "answer" of the Mayer Company.
Before final submission of the cause to the chancellor and after testimony taken, all of the persons (some were not parties to the cause) interested in the estate over and to which the court and its receivers had extended the court's jurisdiction and possessory controlling powers, except the Mayer Company, executed and filed in the court an agreement wherein their respective claims and their amounts were fixed and stipulated. The instrument provided:
The decree consequent upon the submission sustained the Mayer Company's claim of precedence over the claim of the complainant-mortgagee, and directed the payment of the sum so found due the Mayer Company out of the amount awarded by or under the agreement to the Farmers' State Bank, viz. $1,908, according to the pertinent terms of the agreement before quoted.
The main contention for error in the decree is that the relief thus granted to the Mayer Company could not be awarded without a cross-bi...
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