Greil Bros. Co. v. City of Montgomery

• Decision Date: 10 June 1913
• Citation: 62 So. 692,182 Ala. 291
• Parties: GREIL BROS. CO. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

62 So. 692

182 Ala. 291

GREIL BROS. CO. v. CITY OF MONTGOMERY.

Supreme Court of Alabama

June 10, 1913

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Bill by the City of Montgomery against the Greil Bros. Company to declare a lien upon the capital stock of said company and sell the same for payment of taxes due the said city. From a decree overruling demurrers to the bill, respondent appeals. Reversed, rendered, and remanded.

The case made by the bill is that the corporation has capital stock, of the par value of $100,000, divided into shares of $100 each; that the real and personal property owned by the company and subject to taxation amounted to $52,225, which being deducted from the capital stock, leaves the sum of $47,775 subject to taxation, and that upon this amount for the year 1906 the city of Montgomery levied a tax of $11.25 per $1,000, amounting in the aggregate to $537.47; that such tax was levied upon the corporation for the year 1906, and that the corporation has failed and refused to pay said tax. It is further alleged that the city has a lien for the unpaid municipal tax upon said shares of the capital stock of said corporation under the laws of Alabama, for the payment of said taxes and arrears. The demurrers raise the question of no equity, complete and adequate remedy at law, limitation laches, and want of proper parties to the bill, and a want of the pursuance of a remedy provided by law for the collection of municipal taxes, and that nothing is shown fixing a lien on the capital stock for the taxes herein sought to be collected.

Steiner Crum & Weil, of Montgomery, for appellant.

John V Smith, of Montgomery, for appellee.

MAYFIELD J.

This is a bill, by a municipal corporation against a business corporation, to enforce a lien for municipal taxes accruing for the year 1906. It is an initial suit in equity, to collect such taxes by an enforcement of the lien given by statute for such taxes. For this purpose the bill seeks a sale of the capital stock of the appellant corporation. The sole equity upon which the bill rests is to enforce such lien by a sale of such stock.

Complainant insists, and the trial court held, that a court of equity has original and inherent jurisdiction to enforce all liens, and that it will proceed to do so, on a bill filed for that purpose, in the absence of an express statute depriving the court of such jurisdiction. We do not think this to be a correct or an accurate statement of the rule in this state. While this court has unquestionably gone much further than most of the state courts in asserting and maintaining equity jurisdiction for the purpose of enforcing liens, we do not think it has gone to the extent to which such jurisdiction is asserted and maintained in this case by the trial court.

The rule was probably as broadly stated in the case of Crass v. M. & C.R.R. Co., 96 Ala. 447, 11 So. 480, as it is to be found in our decisions. It is there said: "The rule which prevails in this state is that declared by Mr. Pomeroy, and is as follows: 'Although a statute may confer a remedy for the enforcement of a right in a court of law, unless the statute contains negative words, or other language expressly taking away a pre-existing equitable jurisdiction, or by its reasonable construction and its operation show a clear legislative intent to abolish that jurisdiction, the equitable jurisdiction remains unabridged.' 1 Pom.Eq.Juris. § 279. A common carrier undoubtedly is entitled to a lien for freight upon the goods carried, and the right to retain possession of them until his reasonable charges are paid. 2 Wait's Actions & Defenses, p. 60, § 2; Story on Bailments, § 588; Long v. Mobile & Montgomery Railroad Co., 51 Ala. 512. The lien exists independent of any remedy given by statute for its enforcement, and we do not doubt that a court of chancery has jurisdiction to enforce it. Westmoreland v. Foster, 60 Ala. 453; 2 Kent, § 642."

That this state has gone further to uphold equity jurisdiction to enforce liens than most states is pointed out in the case of Aldine v. Phillips, 118 Mich. 162, 76 N.W. 371, 42 L.R.A. 531, 74 Am.St.Rep. 380, 387, et seq., where it is said: "When we search for cases where statutory or common-law liens have been foreclosed in equity upon bills filed for the purpose, we find few, though it is probable that the states of Alabama, Kentucky, Illinois, and Maryland would sustain the practice. In Westmoreland v. Foster, 60 Ala. 448, a bill was filed against a tenant to enforce a lien for rent, against cotton in the hands of the vendee of the tenant. It was there held that a statutory lien, which is an incident of some contract made, is enforceable by the common processes of the law. This case proceeded upon the theory of a trust. Tutwiler v. Tuskaloosa, etc., Land Co., 89 Ala. 391 , was a case where the stockholder filed a bill to enjoin a sale of his stock on account of a failure to pay calls, and to have the affairs of the corporation settled, and an account stated. A demurrer was sustained, and the complainant appealed. The case was affirmed, and the court seems to have held that the lien on the stock could have been foreclosed in chancery, citing Westmoreland v. Foster, 60 Ala. 448, as authority. This case was followed by Crass v. Memphis, etc., R.R. Co., 96 Ala. 447 . A bill was filed to enforce a common carrier's lien, and to require the defendants to interplead as to the ownership of the property which was in the carrier's possession. The court said that it had no doubt that a court of chancery had jurisdiction to enforce the lien, again citing Westmoreland v. Foster, 60 Ala. 448, and the authority quoted from Kent. It is fair to say that, while each of these cases alleges some other ground of jurisdiction than the mere foreclosure of a lien, the latter case indicates that a bill filed for foreclosure only would be sustained."

In each of the cases above referred to there was an independent equity, and the enforcement of the lien was incidental thereto.

The rule has been thus stated by this court in other cases: Under our statutes equity has jurisdiction to enforce the statutory lien of mechanics and materialmen; and, if a materialman has obtained a judgment at law on his claim, and become the purchaser of the property at a sale under it, he may come into equity, against a prior mortgagee who has also become the purchaser of the property at a sale under his mortgage, to have the priorities of their respective liens adjusted and the property sold for their satisfaction. Birmingham Building, etc., Ass'n v. May, etc., Co., 99 Ala. 276, 13 So. 612.

On the other hand, it has been decided that where a statute creates a specific mechanic's lien, and gives a specific remedy for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, in the absence of some special ground of equitable interposition such as renders the remedy at law unavailable or inadequate. Walker v. Daimwood, 80 Ala. 245; Chandler v. Hanna, 73 Ala. 390; Enslen v. Wheeler, 98 Ala. 200, 13 So. 473.

This court has in other cases pointed out the distinctions and differences between certain liens conferred by statute, which are unenforceable in a court of equity, without other independent equity that the mere enforcement of liens, such as bills to enforce liens upon the property of sureties on the bonds of tax collectors.

In Lott's Case, 79 Ala. 74, it is said: "The statute declares that 'the bond of the tax collector shall operate, from its execution, as a lien in favor of the state and county on the property of such tax collector, for the amount of any judgment which may be rendered against him in his official capacity for the state or county taxes, and on the property of his sureties, from the date of his default.' Code 1876, § 403. 1. That the Chancery Court will assume jurisdiction to enforce a lien of this kind is now well settled by our decisions, and this irrespective of any other equity; none other in fact being requisite. Shuessler v. Dudley [80 Ala. 547, 2 So. 526, 60 Am.Rep. 124]; Knighton v. Curry, 62 Ala. 404; Dallas County v. Timberlake, 54 Ala. 403."

In Timberlake's Case, 54 Ala. 417, such statutory liens as equity will enforce without any other equitable grounds are distinguished from those which it will not enforce, as follows: "Nor can we agree with counsel for the appellees in holding that the lien which the bond 'operates' is like that of a judgment or execution of a court of law, a creature of legislation merely, and not within the cognizance of a court of equity. The only reason why a court of equity cannot enforce the latter lien is that it pertains as a mere incident to the judgment or execution, and is inseparable therefrom. But a tax collector's bond being a contract, by which the law has previously declared liens shall be created, its liens are liens by contract, on the part of the persons who execute the bond, as much as that of a mortgage would be."

In a well-considered case by the Supreme Court of Michigan (118 Mich. 162, 76 N.W. 371, 42 L.R.A. 531, 74 Am.St.Rep. 380), it is said: "Upon the part of the defendant it is claimed (1) that equity has no jurisdiction to enforce a sale of the property to satisfy the statutory lien in a proceeding brought solely for that purpose," etc. After quoting citing, and reviewing many authorities, including text-books and decided cases, the court says: "Does it follow that a common-law lien can be foreclosed in equity because it does not confer upon the creditor the right to sell the property? It is evident that, in cases of common-law lien for a liquidated claim, a judgment and execution are as expeditious and effective as a proceeding in equity would be likely to be,...