Farmers' Sav. & Bldg. & Loan Ass'n v. Kent

• Decision Date: 18 May 1898
• Parties: FARMERS' SAVINGS & BUILDING & LOAN ASS'N v. KENT ET AL.[1]
• Court: Alabama Supreme Court

23 So. 757

117 Ala. 624

FARMERS' SAVINGS & BUILDING & LOAN ASS'N v. KENT ET AL.^[1]

Supreme Court of Alabama

May 18, 1898

Appeal from chancery court, Morgan county; William H. Simpson Judge.

Bill by Kent & Sabotka against the Farmers' Savings & Building &amp Loan Association and others to enjoin the foreclosure of a mortgage and for an accounting. From a decree overruling demurrers to the bill, defendant association appeals. Affirmed.

The bill in this case was filed by the appellees, Kent & Sabotka and averred that one J. B. Brewer negotiated a loan from the Farmers' Savings & Building & Loan Association, and to secure the same executed a mortgage upon certain parcels of real estate, and in accordance with the building and loan plan Brewer subscribed for certain shares of stock in the association at the time of negotiating the loan, and as recited in the mortgage, pledged such stock as security for the debt. The real estate mortgaged was separate and distinct; some of it being town lots, others being store property and dwelling houses, and a part being acreage property. This mortgage was executed on November 2, 1892. On November 1, 1895, Brewer contracted to convey to one Politinsky for $1,000, a certain parcel of the property contained in the mortgage. On December 3, 1895, he conveyed with covenants of warranty, a certain parcel to the complainants, and on December 15, 1895, he conveyed still another parcel to the complainants. On December 8, 1896, he contracted to convey to the defendants, Parker and Sharp, still another parcel of the mortgaged property, and on January 27, 1897, he conveyed to the other two defendants certain other parcels of said mortgaged property. That the association claimed that Brewer had made default in his payments as contracted for, and had advertised all of the property for sale under the power contained in the mortgage, and unless restrained would proceed to sell the same in disregard of complainants' rights. It was then averred that Brewer claimed to have paid his debts, and the association claimed that there was a balance due of $480. It was then averred that the lands mortgaged greatly exceeded the sums claimed to be due by the association. The association and the parties other than complainants, who had contracted to purchase or had purchased parts of the lands from Brewer, and Brewer himself are made parties defendant to the bill.

The prayer of the bill is that the indebtedness of said Brewer to said association be ascertained; that the parcel of land still owned by him, and which he had not conveyed to other parties, be first sold by the register to pay the mortgage debt, and if it fails to bring the amount ascertained to be due and owing on said mortgage, that the lands conveyed and contracted to be conveyed to the different parties by Brewer, be sold in the inverse order of their sale and conveyance, and that pending this suit the Farmers' Savings & Building & Loan Association, its servants, agents and attorneys, be enjoined and restrained from selling said land or any part thereof under said mortgage, and from taking any steps to foreclose said mortgage; and then there is a prayer for general relief.

The Farmers' Savings & Building & Loan Association demurred to the bill, upon the following grounds: (1) The bill shows that the complainants are without equitable right to enjoin the sale of the land described in the mortgage executed by said J. B. Brewer. (2) That the only remedy of the complainants is to redeem said realty, and pay to the defendant the amount justly due it. (3) That the complainants in the bill seek to enjoin the sale of lands under the mortgage to the defendant, in which the complainants have no interest. (4) That the complainants' equity is limited to the lands bought by them, and that they have no interest and are not entitled to relief as to the lands conveyed to the parties defendant. (5) That it is not shown by the bill that the lands which are still held by Brewer are sufficient in value to pay the indebtedness due to the defendant. (6) That said bill does not show that the mortgage indebtedness presents an account so complicated as to require the interposition of a court of equity to settle the same.

On the submission of the cause upon this demurrer, the chancellor rendered a decree overruling it. From this decree the Farmers' Savings & Building & Loan Association appeals, and assigns the rendition thereof as error.

Cooper & Wert, for appellant.

A. L. Brown and E. W. Godbey, for appellee.

HARALSON J.

The principle is well settled, that when one mortgages his lands to another, there remains in the mortgagor, only an equity of redemption. Kelly v. Longshore, 78 Ala. 203, 204; Bingham v. Vandegrift,

93 Ala. 283, 285, 9 So. 280.

Again we have held, that a junior incumbrancer will not be allowed to go into equity to enforce the incumbrance of the senior, and his own, for the payment, first, of the demand of the senior, and, next, his own. Mims v. Cobbs, 110 Ala. 578, 18 So. 309.

There is a marked distinction, however, between a junior incumbrancer, and a grantee of lands sold subsequent to the mortgage. "The mortgagor can convey the entire mortgaged premises to a single grantee; or he can convey them in parcels to different grantees simultaneously or successively or...