First Ave. Coal & Lumber Co. v. King

• Decision Date: 13 May 1915
• Docket Number: 952
• Citation: 69 So. 549,193 Ala. 438
• Parties: FIRST AVE. COAL & LUMBER CO. v. KING et al.
• Court: Alabama Supreme Court

69 So. 549

193 Ala. 438

FIRST AVE. COAL & LUMBER CO. v. KING et al.

No. 952

Supreme Court of Alabama

May 13, 1915

On Rehearing, June 30, 1915

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Suit by the First Avenue Coal & Lumber Company against S.P. King and others. From a decree establishing the rights of the parties as to liens, plaintiff appeals. Affirmed.

W.H Woolverton, of Birmingham, for appellee.

SAYRE J.

On September 2, 1911, Stephen Bell executed and delivered to the Jefferson County Building & Loan Association a mortgage on a vacant lot owned by him in the city of Birmingham. This mortgage secured a loan of $600. This mortgage was forthwith placed upon record with the judge of probate. Four days later Bell bought on credit from appellant lumber and other material, which began from that date to be incorporated into a building then being erected on the lot, payable on December 23, 1911. On September 25, 1911, Bell made a mortgage to appellee on said lot for the sum of $700. This last mortgage covered also an adjoining lot owned by Bell. Of the sum secured by this last mortgage, $229.40--this being the amount, as we infer, due the building and loan association after crediting Bell with the then value of the stock he owned in the association--was on October 23, 1911, paid by appellee to the building and loan association in satisfaction of its mortgage, which was canceled and delivered to him. The balance was paid to Bell. On April 11, 1912, in due course as prescribed by the statute made and provided for the benefit of mechanics and materialmen, appellant filed its declaration and claim of a lien on the lot and building to which its materials had gone. Afterwards this lien was foreclosed by a sale under judgment of the city court of Birmingham for the sum of $766.41. Appellant became the purchaser, received the sheriff's deed on December 26 1912, and went into possession. February 17, 1913, appellant filed its bill against King and others to settle the title to the lot and clear up all doubts and disputes concerning the same, offering to do equity if it should appear that any of the defendants had a prior lien or interest. In his answer King set up his mortgage of September 25th, and in addition claimed a prior lien by subrogation to the right of the Jefferson County Building & Loan Association under its mortgage, to the extent he had contributed to its satisfaction out of the money secured by Bell's mortgage to him. Bell testifies that he got this money to pay off the mortgage to the building and loan association. King testifies that he expected to take a transfer of that mortgage. He did in fact request an assignment; but, upon the refusal of the building and loan association to assign, he paid its debt, receiving the canceled mortgage, as stated above. It is quite clear that, when King took his security, he was ignorant of the fact that appellant was entitled to a lien under the statute. King's claim of prior lien on the lot, not including, however, the building upon it, was allowed in the court below, and its decree to that effect is assigned for error.

Appellant's lien on the lot upon which the building was erected and upon the building, dating from the commencement of work on the building, was superior to appellee's mortgage.

Appellant's interest and title in and to the lot was subordinate to the building and loan mortgage; but its lien on the lot and the building, dating from the commencement of work on the building, was superior to appellee's mortgage of the 25th of September. Code, § 4755.

It appears from the record that appellee King discharged the debt secured by the building and loan association mortgage with a just expectation that he would have a like security for his money. Legal subrogation--thus to distinguish it from conventional subrogation--involved the idea of suretyship and hence the benefit of the doctrine is not extended to strangers; but it is held that one who advances money for the discharge of a prior lien in the circumstances here shown, though without previous interest in the subject of the lien, is not a stranger, and to such an one the benefit of the doctrine will be extended, where that course will best serve the substantial purposes of justice and the true intention of the parties. Bigelow v. Scott, 135 Ala. 236, 33 So. 546; Scott v. Land...