Harvey v. Kirby, 6 Div. 575
| Decision Date | 05 November 1953 |
| Docket Number | 6 Div. 575 |
| Citation | 259 Ala. 614,68 So.2d 40 |
| Parties | HARVEY et al. v. KIRBY. |
| Court | Alabama Supreme Court |
Johnson & Randall, Oneonta, for appellants.
Nash, Nash & Starnes, Oneonta, for appellee.
This is an action brought by Lelias E. Kirby in the Circuit Court of Blount County, Alabama, in Equity, against J. J. Killough, J. M. Atkinson, Elmer Atkinson, J. B. Harvey and Ann C. Harvey. The appeal here is from the ruling of the court sustaining the demurrer of Lelias E. Kirby to the cross-bill of J. B. Harvey and Ann C. Harvey (appellants). J. B. Harvey and Ann C. Harvey originally filed a joint answer, which they prayed to be taken as a cross-bill. By amendments separately filed, they made separate answer and cross-bill. Since the court sustained demurrers as though there was a joint cross-bill, we think it will simplify matters, if we describe and treat the pleading as a joint answer and cross-bill.
The purpose of the original bill appears to be the foreclosure of a mortgage alleged to have been given by J. J. Killough to Lelias E. Kirby (appellee) and also to clear title and settle all the equities of the alleged claimants of the real estate embraced in in the mortgage.
The mortgage from J. J. Killough to Lelias E. Kirby is dated November 4, 1944 and was recorded on November 10, 1944 in the office of the Judge of Probate of Blount County, Alabama. This mortgage covered the following described real estate towit:
'The South Half of the Northwest Quarter of Section 18, Township 14, Range 2 East, located in Blount County, Alabama.'
The allegations of the original bill show that the aforesaid mortgage was for the purchase price of the lands described therein.
The original bill further alleges that J. J. Killough sold and conveyed the aforesaid property to respondents J. M. Atkinson and Elmer Atkinson and that a part of the consideration for this conveyance was the assumption of the mortgage executed by J. J. Killough to your complainant. A copy of the deed is attached to the bill of complaint, marked as an exhibit thereto and made a part thereof. The original bill further alleges that on towit August 1, 1946, J. M. Atkinson and Elmer Atkinson executed to J. B. Harvey a mortgage on the aforesaid property to secure an indebtedness of $2,458.40. The original bill further alleges that this mortgage is inferior to that certain mortgage executed by J. J. Killough to Lelias E. Kirby, hereinabove referred to. Copy of the mortgage executed by J. M. Atkinson and Elmer Atkinson to J. B. Harvey is attached to the bill of complaint as an exhibit and made a part thereof. The allegations of the original bill further show that on towit March 18, 1948, J. M. Atkinson and Elmer Atkinson executed to C. B. Harvey, as guardian for Ann C. Harvey, a mortgage on the aforedescribed property, which mortgage is inferior and subordinate to the mortgage made by J. J. Killough to the complainant Lelias E. Kirby.
The allegations of the original bill further show that default has been made in the mortgage made by J. J. Killough to the complainant Lelias E. Kirby and that the complainant under the provisions of the mortgage has elected to declare the entire indebtedness secured by the mortgage due and payable and is entitled to have the mortgage foreclosed by a sale under a decree of the court of the property embraced and described in the mortgage. It is further alleged that under the provisions of the mortgage in the event it is necessary to employ an attorney to foreclose the mortgage, the mortgagor agrees to pay a reasonable attorney's fee for such services and that the complainant has employed an attorney to foreclose the mortgage and has incurred such expense and is entitled to a reasonable attorney's fee under the circumstances.
The answer of J. B. Harvey and Ann C. Harvey, which they pray to be taken as a cross-bill so far as pertinent to the matters which must be determined on this appeal, admits that J. M. Atkinson and Elmer Atkinson executed the mortgage on the aforesaid land to J. B. Harvey to secure an indebtedness of $2,458.40 on or about August 1, 1946. It is denied, however, that this mortgage is inferior to the alleged mortgage held by the complainant. They further admit that J. M. Atkinson and Elmer Atkinson executed a mortgage on the aforesaid land to C. B. Harvey, as guardian of Ann C. Harvey, on or about the 18th day of March, 1948, to secure an indebtedness of $4,543.50. Copies of the mortgages here referred to are attached to the original bill as exhibits and made a part thereof. It is further alleged in the cross-bill that at the time of the execution of the mortgage to J. B. Harvey he had no notice or knowledge of the complainant's alleged mortgage on said land either actual or constructive and 'that he is a bona fide mortgagee for value of said lands without notice or knowledge of complainant's alleged mortgage and that his mortgage is superior to the alleged mortgage of the complainant.'
The cross-bill contains the further allegation with respect to J. B. Harvey that, 'The cross-complainant further avers in the alternative with reference to the fact that he had no notice or knowledge of the complainant's said mortgage on said land that if the complainant's said mortgage had been filed for record in the probate office of Blount County, Alabama, at the time of the execution of the mortgage to cross-complainant, as above set out, the cross-complainant avers that the only notice or knowledge that he had of the existence of complainant's said alleged mortgage, was that which the law imputes to him on account of the fact that complainant's mortgage was filed for record in the probate office of Blount County, Alabama.'
The cross-bill further alleges that the alleged mortgage of the complainant was never filed for record in the probate office of St. Clair County, Alabama, and that a large portion of said land, the subject matter of this suit, is located in St. Clair County, Alabama. The cross-bill then describes that portion of the land which is located in St. Clair County, Alabama.
It is further alleged that the cross-complainant J. B. Harvey is a bona fide mortgagee for value of all...
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Shaddix v. Wilson
...54 So.2d 509; Brewer v. Brewer, 259 Ala. 149, 66 So.2d 450 and cases cited; Groover v. Darden, 259 Ala. 607, 68 So.2d 28; Harvey v. Kirby, 259 Ala. 614, 68 So.2d 40. There are only two grounds of demurrer addressed to the bill as a whole, both of which are argued here. They read as follows:......
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Groover v. Darden, 5 Div. 554
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Atkinson v. Kirby
...court sustained demurrers to both of these cross-bills and that ruling was reversed on appeal to the Supreme Court. See Harvey v. Kirby, 259 Ala. 614, 68 So.2d 40. Ann C. Harvey amended her cross-bill by adding averments that appellee took possession of the land in November, 1951 and remain......