Jackson v. Farley
Decision Date | 09 April 1925 |
Docket Number | 3 Div. 683 |
Citation | 103 So. 882,212 Ala. 594 |
Parties | JACKSON v. FARLEY. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
Bill in equity by Alice D. Farley against Margaret H. Jackson and others. Decree for complainant, and respondent Jackson appeals. Reversed and remanded.
Henry C. Meader and Steiner, Crum & Weil, all of Montgomery, for appellant.
Hill Hill, Whiting, Thomas & Rives and William F. Thetford, Jr. all of Montgomery, for appellee.
Appellee filed this bill against G.H. Hildreth and wife to foreclose a mortgage dated December 18, 1918. Appellant was also made a party defendant along with others who, it is averred, claimed some right, title, or interest in the property; all such claims having been derived from the mortgagor, subsequent to appellee's mortgage. Appellant alone defended, claiming under a second mortgage and as alienee of the purchaser of the property at sheriff's sale had to satisfy a judgment recovered by Smart & Cahalin declaring a lien on the property for materials furnished and work and labor done by them in improving the property. Smart & Cahalin's lien was superior to the lien of appellee's mortgage for the reason that the materials were furnished and the work and labor done prior to the execution of that mortgage--this notwithstanding the declaration of a lien was filed in the office of the judge of probate, as provided by section 4758 of the Code of 1907 (8836 of the Code of 1923), after appellee's mortgage had been executed and filed for record in the same office. Section 4755 of the Code; First Avenue Co. v. King, 193 Ala. 440, 69 So. 549. Until verified and filed according to the statute, such lien was inchoate and defeasible. After verification and filing it was complete and, in favor of the contractor who furnished materials and did labor, dated from the commencement of the work. Welch v. Porter, 63 Ala. 231.
The question between them, being one of priority only, can as well be determined in the cause now at bar--must be so determined because the action at law to foreclose the lien, prosecuted and decided as it was in full accord with the statute, afforded no opportunity for its earlier determination.
Nor were the contractors required to file a bill against the junior mortgagee within six months. The proceeding to foreclose their lien was properly brought against the contracting owner Hildreth alone. Mrs. Farley's mortgage not being questioned, but only its priority over their lien denied, there was as between the contracting mechanics and her no issue save that of priority--nothing to be determined by a bill against her but the matter of priority. For the determination of that question, in the circumstances of this case, a bill in equity was necessary (Birmingham B. & L. Asso. v. May & Thomas Hdw. Co., 99 Ala. 276, 13 So. 612), and it was no more incumbent on the mechanic contractors or their alienee to file a bill than it was on the mortgagee. The bar against such a bill on either hand depended on possession, running against the party out of possession, and was by no means controlled or limited by the statute requiring actions for the foreclosure of mechanics' liens to be brought within six months. Vesuvius Lumber Co. v. Alabama Fidelity Co., 203 Ala. 93, 82 So. 107; Pilcher v. Porter, 208 Ala. 202, 94 So. 72. As between appellee's mortgage and the foreclosed lien of the mechanic contractors, the question of priority is determinable in this case on the facts apart from the lapse of time subsequent to the initiation of the lien and is now precisely what it was when the mortgage was executed. By her purchase of Smart & Cahalin's title, acquired at the end of their action to enforce their lien, appellant is entitled to priority to the extent at least of the lien declared in that proceeding.
The deed from Smart & Cahalin conveyed to appellant "all the right, title and interest acquired by us under said sale [to foreclose the mechanics' lien]." It may be conceded that appellant's purchase from them is to be considered as an exercise by her of the statutory right...
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