First Nat. Bank of Talladega v. Browne

• Citation: 29 So. 552,128 Ala. 557
• Parties: FIRST NAT. BANK OF TALLADEGA v. BROWNE.
• Decision Date: 15 January 1901
• Court: Supreme Court of Alabama

29 So. 552

128 Ala. 557

FIRST NAT. BANK OF TALLADEGA v. BROWNE.

Supreme Court of Alabama

January 15, 1901

Appeal from city court of Talladega; G. K. Miller, Judge.

Suit by Sarah B. Browne against the First National Bank of Talladega to quiet title and to compel determination of claim thereto. Affirmed.

On the final submission of the cause on the pleadings and proof the chancellor rendered a decree in favor of the complainant and establishing an absolute title to the lot in question in the complainant, and ordered that the respondent be perpetually enjoined from setting up any claim, right, title, or interest in said lot. From this decree the respondent appeals, and assigns the rendition thereof as error.

Knox &amp Bowie, for appellant.

Cecil Browne and Dryer & Webb, for appellee.

SHARPE J.

This suit is brought under the statute (Code, § 809 et seq.) to have determined as between complainant and defendant their respective rights in a lot in Talladega. The complainant claims as a purchaser from J. J. Hendricks, and the respondent asserts an interest in the lot as a creditor of Hendricks. The following facts appear of record, and are undisputed: During the year 1898, and at the time of the occurrences which gave rise to the claims of both parties the lot in controversy was Hendricks' homestead, and was of the value of $1,800, and not more. It was subject to a mortgage held by J. M. Lewis for a balance due him from Hendricks as purchase money for the lot, amounting to $1,740. Defendant held a note against Hendricks, given in January 1898, payable in March of that year. Shortly after the note became due, Hendricks made an assignment of property for the benefit of creditors, reserving therefrom the homestead lot. In June, 1898, defendant obtained and registered a judgment on the note against Hendricks, in which there was a recital of his waiver of exemptions as to personal property only. Defendant and Lewis both participated as creditors in the distribution of funds by the assignee, Lewis receiving on his mortgage debt $533.80. In December, 1898, complainant, with notice of the facts stated, bought the lot of Hendricks, and received his conveyance, for the price of $1,550, which was settled by her paying $450 in cash and assuming to pay the amount remaining unpaid on Lewis' mortgage, amounting to $1,100.

By the common law, lands were not subject to the payment of debts. The creditor's remedy to so subject them exists by statute only; and by the constitution, supplemented by the statute, the remedy is withheld from that...