Higman v. Humes

• Decision Date: 14 June 1900
• Citation: 127 Ala. 404,30 So. 733
• Parties: HIGMAN ET AL. v. HUMES. [1]
• Court: Alabama Supreme Court

30 So. 733

127 Ala. 404

HIGMAN ET AL. v. HUMES. ^[1]

Supreme Court of Alabama

June 14, 1900

Appeal from chancery court, Morgan county; William H. Simpson Chancellor.

Bill by Milton Humes against John Higman, Jr., and others.From an order overruling a demurrer to the bill and motion defendants appeal.Affirmed.

The bill sought to have a mortgage executed to the defendant Higman declared a cloud upon the title of the complainant and further prayed that the title to said lands specifically described in said bill be invested in the complainant, and that the defendantJohn Higman, Jr., be perpetually enjoined from asserting any rights to said property under the mortgage upon said lands which was given to said Higman.The facts of the case, as averred in the bill, are sufficiently stated in the opinion.The defendantJohn Higman, Jr., demurred to the bill upon substantially the following grounds: (1) That the averments of the bill show that the rights of the defendant Higman were paramount to those of the complainant; (2) that by the foreclosure of the mortgage at the suit of the complainant, and the purchase at said foreclosure sale by the mortgagor, all the title to said lands vested eo instanti in the defendant by virtue of the words of statutory warranty given in the mortgage to the defendant; (3) it was shown by the averments of the bill that the title of the complainant is not superior to the title of the defendant.The defendant Higman also moved to dismiss the bill for the want of equity.

E. W Godbey, for appellants.

Humes & Speake, for appellee.

DOWDELL J.

The appeal in this case is taken from the decree of the chancellor rendered on December 16, 1898, overruling the demurrer of the respondentJohn Higman, Jr., to complainant's bill, and also the motion of said respondent to dismissthe bill for want of equity.The vital question raised by the demurrer and motion, and the one urged in argument by counsel, is one of priority between mortgagees.The facts as stated in the bill are substantially as follows: On the 14th of January, 1888, the respondentHarris C. Higman, together with Newton B. Hall and George Smith, executed a mortgage to the complainant Humes and Eugene C. Gordon, Lionel W. Day, George E. Crane, and Hiram G. Bond, on the land involved, for the balance of the purchase money due thereon.The complainant Humes subsequently became the sole owner of the mortgage debt, and filed a bill on the 17th of April, 1895, to foreclose said mortgage.The mortgagors and the comortgagees were made partiesrespondent to this bill.On September 10, 1895, complainant, Humes, and respondentHarris C. Higman entered into a written agreement, by the terms of which the said Higman was to withdraw his defense to said suit, and consent to the rendition of a decree of foreclosure for the amount of the debt due on said mortgage, to wit, $2,468, with the understanding that the said Higman was to become the purchaser at the foreclosure sale, and to execute new notes and a new mortgage to secure the payment of said notes; the said notes to cover the amount of the decree.On September 12, 1895, a decree of foreclosure was rendered; and October 28, 1895, the land was sold by the register under said decree, at which said sale said Higman, in pursuance of his said agreement, became the purchaser, bidding the sum of $500.On February 19, 1896, the sale was confirmed by the court on the report of the register that the purchaser, the said Higman, had made satisfactory arrangement with the complainant.On November 28, 1895, and before the delivery of the register's deed of the same date, Higman executed the second mortgage to Humes on the same property, which was filed for record on February 4, 1896, and on which same day the register's deed to Higman was filed for record.The mortgage in favor of John Higman, Jr., executed by said Harris C. Higman on the same lands, bears date of October 7, 1889, and was recorded November 5, 1889,-long subsequent in time, both as to execution and record, to the mortgage by H. C. Higman and others to Humes and others, and which was foreclosed under the agreement as above stated between Humes and Higman.

It is distinctly averred in the bill that it was not the intention of the parties in the making of the agreement of September 10, 1895, or by the foreclosure proceedings had in pursuance thereof, to discharge and release the lien of the first mortgage....