Grubbs v. Hawes

• Decision Date: 29 June 1911
• Citation: 56 So. 227,173 Ala. 383
• Parties: GRUBBS ET AL. v. HAWES.
• Court: Alabama Supreme Court

56 So. 227

173 Ala. 383

GRUBBS ET AL. v. HAWES.

Supreme Court of Alabama

June 29, 1911

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Suit by Walker A. Hawes against Walter M. Grubbs and others. From a decree for complainant on demurrer, defendants appeal. Affirmed.

The respondents named in the bill are Walter M. Grubbs, Hallie Grubbs, Dodson Printers' Supply Company, a corporation C. Ed Albes, W. N. Hall, and J. W. Mulligan. Paragraph 1 alleges the execution of a mortgage to orator by Walter M and Hallie Grubbs, on May 15, 1905, or on or about May 23 1905, in the sum of $1,250, which deed was duly acknowledged and recorded, and conveyed lot C, in block 312, of the Decatur M. & L. Co.'s addition to Decatur, Ala. Paragraph 2 alleges the execution, contemporaneous with the execution of the mortgage, by Walter Grubbs to orator, of eight promissory notes, each for the sum of $150, except the one maturing May 15, 1914, which was for the sum of $200; each note being payable as follows: One on May 15, 1907, and one on the 15th day of each succeeding May thereafter, until all of said notes should be paid, and the notes provided payment with interest semiannually. Paragraph 3 alleges that Walter M. Grubbs had paid nothing whatever on said notes or mortgage, nor had any one paid him anything whatever, except four installments of interest at $50 each, paid by Walter Grubbs on the following dates: May 15, 1907, November 15 1907, May 15, 1908, and November 15, 1908--and that the remainder of said notes and mortgage, together with interest counsel fees, insurance premiums, taxes, assessments, etc., hereinafter set forth, are all past due and unpaid, and said Walter M. Grubbs is in default. Paragraph 4 alleges the provisions of the mortgage as to keeping the property insured against loss by fire in favor of orator, the payment of the premiums therefor, the payment of all taxes or other legal charges, and, on the failure of Grubbs to pay the same, that orator might pay or cause the same to be paid, which would then become a part of the indebtedness secured by the mortgage, and bear the same rate of interest as the principal debt secured thereby, and payable upon the security of the next maturing note thereafter. It also alleges the further provision that in case of default in the payment of said notes, or any one of them, and in the payment of any premiums of insurance, any taxes, or other charges that should have accrued, for a period of 60 days after maturity, then orator might declare the whole indebtedness payable immediately, take possession, advertise for sale, etc. Paragraph 5 alleges the agreement to pay the expenses of foreclosure, including reasonable attorney's fees, any balance of principal and interest, together with any amount expended for insurance taxes, or other charges, which might have been paid as therein agreed. It is further alleged that the note referred to contained an agreement to pay all costs of collection, including a reasonable attorney's fee, in case the note should not be paid at maturity, and the said note also waived the rights of exemption as to personal property. Paragraph 6 alleges that upon said lot of land above described there was afterwards erected a small one-story brick structure, planned, designed, and built for use as a printing office; and it was agreed at the time the money was loaned, for the payment of which said mortgage was executed, that said money should be expended in erecting said structure, and said building, after it was erected, was by the said Walter M. Grubbs equipped with the following machinery, which was to be used and which has been used in conducting a printing plant, and which constitutes a part of the printing outfit for which said structure was erected, to wit: One Eclipse folding machine, No. 2383; also one 37X52"' rebuilt Campbell cylinder printing press; one No. 1 Eclipse folder, with steel runs and trimmers; one 14 1/2X22"' Chandler & Price press No. K-82; one 8X12 Jones-Gordon jobber press; also one large electric motor for running said presses, and one long shaft and pulley connecting said motor and presses. Paragraph 7 avers that all of said machines above described are firmly fastened and fixed to the building; that they were installed and attached with especial reference to the building, and in furtherance of the purpose for which the building was erected, and with the object and intention that the same should be permanent, and that, as between your orator and the said Walter M. Grubbs, the said articles, etc., were fixtures, and are and always have been, since their installation and connection, a part of the realty embraced within the lien of your orator's mortgage aforesaid. Paragraph 8 alleges that the said fixtures above mentioned, except the said motors and pulleys and shafts, and except, also, the said Jones-Gordon press, were purchased by the said Walter M. Grubbs from the Dodson Printers' Supply Company, on which a part of the purchase money, just how much is to your orator unknown, is past due and unpaid, and to secure the same Grubbs executed, contemporaneously with said purchase, certain instruments in writing, in substance and effect stipulating that the title to said machine should remain in the said Dodson Printers' Supply Company until said articles and others should be paid for in full. Copies of said agreements are made exhibits to the bill. It is then alleged that the Dodson Printers' Supply Company had brought detinue for said machines, which is now pending and undetermined in the Morgan law and equity court, of Morgan county, and that Walter M. Grubbs had executed the statutory bond enabling him to remain in custody of said property pending the determination of said suit, and that upon each of said bonds said W. N. Hall, C. Ed Albes, and J. W. Mulligan were and are sureties. Paragraph 9 alleges Grubbs' insolvency, and that the mortgaged property and said machines above referred to as being a part of the realty, taken in connection with the incumbrances on said machines, altogether are much less in value than the amount of complainant's debt and the unpaid charges on said property hereinafter set out. Paragraph 10 alleges that on July 24, 1909, W. H. Drinkhard, as tax collector of Morgan county, Ala., assumed to levy upon, and did assume to make sale of, and did as tax collector execute substantially a statutory bill of sale of, a large amount of the printing outfit in said building, including the above-named Campbell roller press, for delinquent state and county taxes due and owing and assessed against the said Walter M. Grubbs and his property, and the purchaser at said sale was the said Hallie M. Grubbs, and the subject-matter of said sale was, or was recited to be in the said bill, after mentioning the number of articles, "all other printing material, fixtures, etc., belonging and appertaining to the office of the said Decatur News, belonging to said Walter M. Grubbs. It is further averred that on the 19th of July, 1909, Marvin West, as register in chancery in and for Morgan county, Ala., did as such register sell and convey to E. L. Simpson and J. D. Orr said house and lot above mentioned and described at and for the sum and price of $83.30, which was the amount of taxes due and owing and assessed against said Walter M. Grubbs by and in favor of the city of Decatur, Ala., for the preceding tax year; said Grubb being delinquent. Said sale was made under and by virtue of a decree rendered by the chancery court on May 17, 1909, in the case of City of Decatur v. Walter M. Grubbs, in a delinquent tax proceeding, which decree is here referred to and asked, if necessary, to be taken as a part of his bill of complaint. It is then alleged that orator considered himself compelled to and did purchase of and from said vendees, Simpson and Orr, all right, title, and interest which they held, and which they had acquired under said sale under said decree, at and for the sum of $90.81, taking from them a quitclaim deed to said property. It is further alleged against said property there are now past due, delinquent, unpaid, and interest-bearing taxes, which were of right due and payable October 1, 1909, in the amount of $13.50 with the further sum of $1 fees, and also the sum of $8 further taxes due the city of Decatur by the said Walter Grubbs, with interest and 50 cents fees, and also the following improvement assessment against said property for street and sidewalk improvements: Sidewalk improvements, $31.43, with interest since July 14, 1908, and street paving assessment of $173.10, with interest from November 6, 1908, and curbing assessments of $7.80, with interest from September 1, 1908. Paragraph 11 alleges the insurance premiums paid by orator to be $11.50, and that in this respect Grubbs is also in fault. Paragraph 12 alleges divers and sundry other liabilities against the said W. M. Grubbs, with respect to which he is in default, and that his assets are far less in value than his liabilities, and that orator has no further security for the claim and indebtedness against the said Grubbs than is above set forth. Paragraph 13 alleges certain outstanding judgments against Grubbs, executions issued thereon, and returnable property. Paragraph 14 alleges that the building is of cheap construction and material, that it is in a leaky condition, on account of the defective roof, and that it is becoming generally dilapidated for want of ordinary care and attention; that it is decreasing in value, and is liable to decrease to a greater extent unless the court will take charge of the same through the...