First Nat. Bank of Mobile v. Gilbert Imported Hardwoods, Inc.

Decision Date24 April 1981
Citation398 So.2d 258
PartiesThe FIRST NATIONAL BANK OF MOBILE v. GILBERT IMPORTED HARDWOODS, INC. 80-20.
CourtAlabama Supreme Court

Mary Elizabeth McFadden of McFadden, Riley & Parker, Mobile, for appellant.

Irvin J. Langford and George W. Finkbohner, Jr. of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.

BEATTY, Justice.

Appeal from a judgment of dismissal in favor of the defendant, Gilbert Imported Hardwoods, Inc. (Gilbert). We reverse and remand.

The action began with a complaint for a declaratory judgment filed by The First National Bank of Mobile (First National) praying that the circuit court acknowledge plaintiff-bank as the priority lienholder with respect to a certain lot of land located in Mobile County. According to the complaint, Leslie and Jessie Sims conveyed the lot to Gayle Roberts by deed dated August 2, 1978, reserving a vendor's lien. Then on January 26, 1979 Roberts and his wife executed a mortgage on the property to Commercial Guaranty Bank of Mobile. Later that year, on December 10, 1979, the Robertses executed another mortgage on this same property to First National.

On March 24, 1980 the Robertses conveyed the property by deed to Gilbert. On that same date Gilbert took an assignment of their vendor's lien from the Simses. An assignment of the mortgage held by Commercial Guaranty was made by Commercial to Gilbert on April 23, 1980. The effect of these transactions, alleged the plaintiff, merged the legal and equitable titles in the defendant, Gilbert, with First National's mortgage lien being elevated to priority lienholder status. The plaintiff alleged further an imminent foreclosure of the Commercial Guaranty mortgage by the assignee, Gilbert, when that lien had been extinguished by merger, and when there was no basis for a foreclosure because the only remaining mortgage lien, the Robertses' mortgage to First National, was not in default.

The defendant, Gilbert, moved to dismiss the complaint, inter alia, for failure to state a claim on which relief could be granted. This motion was granted.

The plaintiff moved for a reconsideration of the judgment of dismissal, alleging that it could prove that the consideration for the deed from the Robertses to Gilbert was the satisfaction of the Simses' vendor's lien, the Commercial Guaranty mortgage lien, and the plaintiff's mortgage lien, but that instead of satisfying those liens the defendant took assignments of the first two but failed to satisfy that of the plaintiff. Thus the plaintiff contended that dismissal was not appropriate because of the intent of the parties (apparently the Simses, the Robertses and Gilbert). The motion for a reconsideration was also denied, and this appeal followed.

Whether the motion to dismiss was properly granted depends in the first instance upon the effect of the deed and assignments to Gilbert.

With regard to mortgages, Alabama is a "title" state, i. e., upon the execution of the mortgage legal title passes to the mortgagee. See Trauner v. Lowrey, Ala., 369 So.2d 531, 534 (1979) and cases cited. The mortgagor retains an equity of redemption which he may convey. McDuffie v. Faulk, 214 Ala. 221, 107 So. 61 (1926). Under these principles, when the Robertses executed the mortgage of January 26, 1979, Commercial Guaranty took legal title to this lot of land as security for the mortgage debt, with the Robertses retaining an equity of redemption only. The subsequent assignment of this mortgage by Commercial vested that legal title in Gilbert. The Robertses' intervening deed to Gilbert on April 23, 1980, together with the Simses' assignment of their vendor's lien to Gilbert on the same date, vested all legal and equitable interests in Gilbert, subject to the Robertses' mortgage to First National. What was the effect of these transfers on the Commercial Guaranty mortgage?

According to the plaintiff, the effect was to extinguish the debt represented by the Commercial Guaranty mortgage, leaving the First National mortgage as the sole mortgage obligation. In any event, the plaintiff states, whether that result follows is a question of intention.

Tiffany, Law of Real Property, Vol. 5, § 1497 at 504 comments upon the effect of the acquisition of the mortgaged land and the mortgage debt:

As we have before seen, the debt is the principal thing, and the mortgage is merely an incident, and the question is, not whether the mortgage is merged, but whether the acquisition by one person of both the mortgaged land and the debt secured by the mortgage has the effect of extinguishing or merging the debt. If the debt is extinguished under such circumstances, the mortgage lien is necessarily also extinguished, while if the debt remains the mortgage lien also remains. Even in states which adhere to the title theory of a mortgage, the mere acquisition, by the owner of the land, of the legal title of the mortgagee, without the debt, could not extinguish the debt, nor affect the creditor's right to proceed against the land in equity, while, on the other...

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62 cases
  • McInnish v. Bennett
    • United States
    • Alabama Supreme Court
    • March 21, 2014
    ...them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he......
  • D.A.R. v. R.E.L.
    • United States
    • Alabama Supreme Court
    • September 7, 2018
    ...them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala. 1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether h......
  • Ex Parte Donna Mckinney & Marlin Mckinney, Petition For Writ of Mandamus
    • United States
    • Alabama Supreme Court
    • May 26, 2011
    ...a mortgage passes legal title to the mortgagee.' See Foster v. Hudson, 437 So. 2d 528 (Ala. 1 983); First Nat'l Bank of Mobile v. Gilbert Imported Hardwoods, Inc., 398 So. 2d 258 (Ala. 1981); Jones v. Butler, 286 Ala. 69, 237 So. 2d 460 (1970); McCary v. Crumpton, 267 Ala. 484 , 103 So. 2d ......
  • McKinney v. McKinney
    • United States
    • Alabama Supreme Court
    • January 20, 2012
    ...of a mortgage passes legal title to the mortgagee.’ See Foster v. Hudson, 437 So.2d 528 (Ala.1983); First Nat'l Bank of Mobile v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981); Jones v. Butler, 286 Ala. 69, 237 So.2d 460 (1970); McCary v. Crumpton, 267 Ala. 484, 103 So.2d 714 (......
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