Greil Bros. Co. v. McLain

CourtSupreme Court of Alabama
Citation89 So. 505,206 Ala. 212
Docket Number3 Div. 437
PartiesGREIL BROS. CO. et al. v. McLAIN.
Decision Date12 May 1921

Rehearing Denied June 23, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by M.P. McLain against the Griel Bros. Company and Carew Powell to enjoin the foreclosure of a mortgage and to annul and cancel same. From a decree granting the relief prayed respondent appeals. Affirmed.

Steiner Crum & Weil, of Montgomery, for appellant.

Hill, Hill, Whiting & Thomas, of Montgomery, for appellees.


This is a bill filed to cancel a mortgage and to secure a preliminary injunction to prevent its foreclosure, because void for want of consideration or failure of consideration, or fraudulent misrepresentations to secure it, or the contract on which it is based is contrary to public policy.

There was decree pro confesso against Carew Powell. The defendant Greil Bros. Company (appellant here) filed answer, denying the material averments of the bill, and claiming to be bona fide purchasers for value, without notice, of the notes and mortgage. This cause has been in this court before on appeal from decree on demurrers to the bill and on motion to dissolve the injunction. 197 Ala. 136, 72 So. 410.

The facts alleged in the bill are clearly stated in the former opinion, and it will not be necessary to repeat all of them here. It is now before this court on its merits.

On January 11, 1915, under permission and direction of the excise commission, for $1,500 cash, the probate judge of Montgomery county, Ala., with approval of the state auditor, issued license to Carew Powell to transact business as a retail liquor dealer at 118 and 120 Southside Highland avenue in the city of Montgomery until December 31, 1915. It had printed thereon: "This license is not transferable." The complainant had repeatedly tried, but failed, to secure a license from the excise commission to retail liquor at No. 944 Bell street, in said city of Montgomery. The next day, January 12, 1915, after said license was issued to Carew Powell, he sold, conveyed, and transferred it in writing to complainant, M.T. McLain, and L.H. McLain, for $1,500 cash, and for three notes aggregating $1,000 secured by said mortgage. The notes were signed by M.T. McLain and indorsed by his brother, L.H. McLain; the mortgage was executed by M.T. McLain and his wife; the notes and mortgage were made payable to Carew Powell.

Carew Powell owed defendant Greil Bros. Company about $1,800, and Young Johnson was security for it. This $1,500 cash was paid by complainant and his said brother to Young Johnson or to M.L. Greil, who was secretary and treasurer of Greil Bros. Company, in the presence of Young Johnson, and the notes for $1,000 and said mortgage were delivered to said M.L. Greil for Carew Powell at the same time the $1,500 cash was paid. From the evidence, it appears that the two McLains, Johnson, and M.L. Greil were present when the deal was closed. On January 14, 1915, Carew Powell sold, conveyed, and transferred the notes and mortgage to Greil Bros. Company, and it was credited on his debt to it.

It is clear from the evidence that Greil Bros. Company, Carew Powell, Young Johnson, and M.T. McLain and L.H. McLain, all understood and knew the facts in regard to the sale and transfer of the license and the consideration of the notes and mortgage before the $1,500 cash was paid and before the notes and mortgage were executed and delivered. On the very day the license was transferred and the notes and mortgage were executed, the complainant purchased whisky from Greil Bros. Company to commence selling under the license at No. 944 Bell street, in the city of Montgomery, and complainant and his brother under the transfer of the license to them by Carew Powell continued to sell liquor at said place until the law allowing liquor to be sold was repealed, to take effect July 1, 1915.

After the law was repealed the judge of probate remitted, under the law, to Carew Powell a warrant or check for $750.00, one-half of the amount paid for said license for 1915, and Carew Powell transferred the check or warrant to complainant and his brother. Carew Powell's license gave him the right to retail liquor at Nos. 118 and 120 Southside Highland avenue, in the city of Montgomery, during the year 1915. The law required before he could obtain it that he had to deposit with the excise commission $10; that notice of the name of applicant and place he desired to do business had to be published for two successive weeks in some newspaper in the city before the hearing of the application. At or before the hearing objections in writing to the granting of the license "against the applicant or place of business" could be filed by any qualified elector. If the application was granted before the license could issue, the applicant would have to make an affidavit of good conduct, as required by section 17 of the act of 1911, p. 260, and file it with the excise commission, and execute a bond in the sum of $1,000, with at least two good and sufficient sureties, conditioned as required by section 18 of said act of 1911, p. 261, which would have to be approved by the excise commission. Sections 14, 15, 17, and 18 of the act of 1911, p. 260.

Section 15 of this act (Acts 1911, p. 260) directs that--

"The commission shall hear any objections which may be made by any qualified elector of the city to the transfer of any license to another party *** and it shall refuse to permit such transfer *** if in their judgment the same should be refused." In interpreting this act as to a transfer of a license to another person to retail liquor at a different place in the city, this court in this case, on former appeal, through Justice Thomas, clearly expressed the intent and purpose of the act as follows:
"While the act did not prescribe the exact form of the transfer, it is clear that the transfer was designed to be made only to one ascertained (after notice by the commission) to be qualified to conduct the business, in like manner and under like conditions laid down for original applicants for license, and that the transferred business was to be conducted at an approved location, after notice, and under bond given by the substituted licensee as in the case of an original licensee. No reasonable construction of the act would warrant the transfer of a license to parties to whom a license would not be issued originally, nor authorize the transferee to engage in the liquor business at a place where an original licensee would not be permitted to engage therein. All the requirements and safeguards provided by the statute, as to a licensee, must be held to apply as well to a transferee of the license. Any other construction would render the act ineffectual, opening the door for evasion of the law, both in the way of securing of license by persons not qualified and in the way of carrying on the business at improper or prohibited places."

Then the court in the same case declared:

"If, however, the permission was not obtained, and the transfer was not made as required by the statute, the transaction of purchase and transfer would have no binding effect."

The retail liquor license was issued to Carew Powell on January 11, 1915, to do business at 118 and 120 Highland avenue. The next day, January 12, 1915, this...

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2 cases
  • Adams v. Queen Ins. Co. of America, 7 Div. 235
    • United States
    • Supreme Court of Alabama
    • May 24, 1956
    ...There was no error in this ruling of the trial court. Empire Securities Co. v. Webb, 202 Ala. 549, 81 So. 51; Greil Bros. Co. v. McLain, 206 Ala. 212, 89 So. 505; American Ry. Express Co. v. Stanley, 207 Ala. 380, 92 So. During the direct examination of the witness Salit counsel for the def......
  • Driver v. State, 5 Div. 800
    • United States
    • Supreme Court of Alabama
    • June 23, 1921
    ...of 1907? In the case of Henry v. State, 39 Ala. 679, this court, in construing section 3170 of the Code of 1852, which reads as follows: [89 So. 505.] "Any person who commits larceny in any dwelling house and," etc.--held that taking clothes from the banisters of a piazza was not grand larc......

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