First Nat. Bank v. Haynes
| Decision Date | 19 May 1938 |
| Docket Number | 6 Div. 179. |
| Citation | 236 Ala. 133,181 So. 495 |
| Parties | FIRST NAT. BANK OF BIRMINGHAM v. HAYNES ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Bill to quiet title, etc. by the First National Bank of Birmingham against Cleve Haynes, Phillip Ross, Rosa Ross and J. W McCarty. From a decree sustaining a demurrer to the bill and dismissing it, complainant appeals.
Modified and affirmed in part, and in part reversed, rendered and remanded.
Murphy Hanna, Woodall & Lindbergh and Wm. H. Ellis, all of Birmingham, for appellant.
D. G Ewing and Clark & Trawick, all of Birmingham, for appellee McCarty.
The appeal in this cause is prosecuted by appellant--complainant in the court below--from a decree of the circuit court sustaining the demurrers of the several respondents, separately interposed to the amended bill.
The real purpose of the bill was to quiet title in the complainant, to certain real estate in Jefferson County, Alabama, but sought other incidental relief, all germane to the main purpose of the bill.
It appears from the averments of the bill that the respondent Phillip Ross owned certain real property in Jefferson County, and that on January 13, 1923, this respondent and the respondent Cleve Haynes entered into a contract, designated "Lease Sale Contract," whereby the said Phillip Ross agreed to sell, and the said Cleve Haynes agreed to purchase, the said property upon terms and conditions set out in a written contract executed by the said seller and purchaser.
By the terms of said contract Haynes agreed to pay $4,000.00 for the property, of which amount $300.00 was actually paid in cash, and the balance was to be paid in 140 installments of $25.00 each, with interest from maturity, on the 13th day of each month "during the term."
The contract contained the following provision, among others:
"It is further understood and agreed that if the party of the second part fails to pay the monthly rent as it becomes due, and becomes as much as two months in arrears during the first year of the existence of this Lease, or as much as three months in arrears on such payments at any time thereafter, or should fail to pay the taxes on the said property when the same become due, or should fail to comply with any condition or requirement herein, then on the happenings of any such event the party of the second part forfeits his rights to a conveyance of said property, and all money paid by the party of the second part under this contract shall be taken and held as payment of rent for said property, and the party of the second part shall be liable to the party of the first part as a tenant for the full term of said Lease, and the provisions herein 'that the rent paid under this Lease shall be considered a payment for said property, and the party of the first part shall make and execute a deed with a warranty of title conveying said property to the party of the second part,' shall be nullity and of no force or effect; and the failure of the party of the second part to comply with any of the conditions of this instrument shall ipso facto render the said provisions a nullity, and make the said party of the second part a lessee under this instrument, without any rights whatever except the rights of lessee without any notice or action whatever upon the part of the party of the first part."
Upon the execution of this contract of purchase, the said Cleve Haynes was put into possession of the property, and remained continuously in such possession until about October 1, 1932.
Whether at that time, October, 1932, the said Haynes voluntarily abandoned the property, or surrendered the possession to the complainant, or was dispossessed by order of some court, does not appear in the bill.
It further appears that after the sale to Cleve Haynes, and while he was in possession of the premises under his contract of purchase, the said Phillip Ross and his wife, Rosa Ross, another respondent to the bill, to secure an indebtedness (which we are justified in assuming was presently contracted) of $2,150.00, executed and delivered to the respondent J. W. McCarty a mortgage on said property. This mortgage was executed on September 7, 1927, and became due and payable on September 7, 1930. The said mortgage was duly filed for record in the Probate Office of Jefferson County on September 8, 1927.
It further appears that after the execution, delivery and recordation of this mortgage to said McCarty, the said Phillip Ross, on December 31, 1929, executed and delivered to the Bank of Ensley his promissory note in the principal sum of $7,800.00, due and payable on March 29, 1930, and as collateral security therefor "hypothecated" all of the unpaid notes given by the said Cleve Haynes to him on the purchase of said property. That the said principal note of $7,800.00 was thereafter (but just when the bill does not disclose) endorsed to the complainant, for value and before maturity. That on March 21, 1933, the said pledged notes of Cleve Haynes, 43 in number, "were sold at public auction as provided by the laws of Alabama, and purchased by complainant for the sum of one hundred dollars ($100.00), and a collateral security foreclosure bill of sale was delivered to your complainant, a true copy of which is attached hereto, marked Exhibit 'C' and made a part hereof."
The bill prays that the complainant be adjudged and decreed to be the owner of said property; that the respondent Cleve Haynes be adjudged to have no right or title thereto or therein that the right, title and claim of complainant be decreed to be superior and prior to any right existing in the respondent J. W. McCarty by virtue of his said mortgage; that the said Phillip Ross be decreed to have no title or interest in said property; that the court decree the "retention title contract forfeited," in so far as the said Cleve Haynes is concerned; that a judgment be entered against said Haynes for the principal and interest provided in the notes, including a reasonable attorney's fee; or in the alternative that the said Cleve Haynes be allowed to pay off said notes. Other...
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Saliba v. Brackin, 4 Div. 740
... ... 'The Party of the First Part agrees to execute unto the Party of the Second Part a Warrenty Deed ... We are cognizant of the rule stated in First National Bank v. Haynes, 236 Ala. 133, 181 So. 495, 497, which is: ... "If the vendor's ... ...
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Maiden v. Fed. Nat'l Mortgage Ass'n.
...all the right and title, legal and equitable, of the mortgagee, including the mortgage debt.’ ” (Quoting First Nat'l Bank v. Haynes, 236 Ala. 133, 137, 181 So. 495, 497 (1938).) We further note that a mortgagee need not foreclose on its mortgage and obtain a deed in foreclosure before seeki......
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...such as the seller, to enforce a sales contract. Pickard v. Osburn, 261 Ala. 206, 73 So.2d 542 (1954); First Nat'l Bank of Birmingham v. Haynes, 236 Ala. 133, 181 So. 495 (1938). We conclude, as did the trial court, that the deed from the original property owners to the seller assigned to t......
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Crabtree v. Davis, 8 Div. 947.
... ... Any objection thereto ... is first presented on this appeal and comes too late ... Proceeding ... debt." First National Bank v. Haynes, 236 Ala ... 133, 181 So. 495, 497 ... When, ... ...