Lamar v. Lincoln Reserve Life Ins. Co.

• Decision Date: 20 November 1930
• Docket Number: 6 Div. 542,542A.
• Citation: 222 Ala. 60,131 So. 223
• Parties: LAMAR v. LINCOLN RESERVE LIFE INS. CO. LINCOLN RESERVE LIFE INS. CO. v. LAMarch
• Court: Alabama Supreme Court

131 So. 223

222 Ala. 60

LAMAR v. LINCOLN RESERVE LIFE INS. CO.

LINCOLN RESERVE LIFE INS. CO. v. LAMarch

6 Div. 542, 542A.

Supreme Court of Alabama

November 20, 1930

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Bill in equity by Theodore J. Lamar against the Lincoln Reserve Life Insurance Company, with a cross-bill by respondent. From the decree, both complainant, and respondent appeal.

Corrected and affirmed.

Cross-bill by mortgagor in statutory suit to quiet title should have been dismissed without prejudice to parties improperly brought in by cross-bill (Code 1923, § 9907).

The appellant Lamar filed the original bill under the statute against Lincoln Reserve Life Insurance Company, to quiet title to lot 18 in block 240, in the city of Bessemer, as designated on the map of Bessemer Land & Improvement Company recorded in Book 1, pp. 76, 77, Record of Maps in the Probate Office of Jefferson County.

The Life Insurance Company answered, making its answer a cross-bill, and asserting title to the property under a mortgage (and the foreclosure thereof under the power of sale) executed by J. Frank Roberson and his wife, Florida P Roberson, on February 12, 1926, purporting to secure an indebtedness of $12,500, praying that its title to the property be settled and quieted, and, in the alternative that it be allowed to redeem from a sale under execution issued out of the circuit court of Jefferson county, Bessemer division, on a judgment obtained by J. M. Braley against, J Frank Roberson, in a proceeding to enforce a mechanic's lien for material and labor furnished in the improvement of the buildings on said lot.

The complainant, Lamar, People's Finance & Thrift Company, Plough Chemical Company, Kenneth C. Charlton, as the administrator of Frank Roberson, deceased, Florida P. Roberson, Jim Sullivan, the purchaser at the execution sale, E. P. Quigley, and American Traders' National Bank, were all made parties to the cross-bill.

After all the defendants to the cross-bill, except People's Finance & Thrift Company and Plough Chemical Company, had answered, the life insurance company amended the cross-bill by striking as parties defendant Kenneth C. Charlton, as administrator of J. Frank Roberson, deceased, Jim Sullivan, and Florida P. Roberson.

Upon the filing of the amendment, the court, entered an order dismissing "the cause" as to the parties stricken by the amendment.

The complainant, Lamar, in his answer to the cross-bill, claims title to the property through purchase and conveyance from Florida P. Roberson, who redeemed from Sullivan, the purchaser at execution sale.

Prior to the conveyance by Mrs. Roberson to Lamar, she, through and by her attorney in fact, S. A. Moore, executed a mortgage to Quigley and alleged, in the answer of Lamar and Quigley to the cross-bill, a loan of $4,140.22 made by Quigley to Mrs. Roberson to enable her to redeem the property, said answer in response to a charge in the cross-bill that the mortgage was without consideration, alleging "that said E. P. Quigley actually turned over the sum of $4,140.22 and the said Florida P. Roberson had the full benefit thereof."

The case was submitted for final decree on documentary evidence, and testimony taken ore tenus, and thereupon the circuit court was of opinion, and so found, "that at the time their respective liens became fixed, or their respective rights attached, Theodore J. Lamar, People's Finance and Thrift Company, American Traders National Bank, and those whose title they respectively have and through whom they respectively claim, each had notice of the mortgage of Lincoln Reserve Life Insurance Company upon the property described in the bill," and, therefore, that the title, rights, and liens of said parties were subordinate to the mortgage held by the life insurance company. That the lien of the mortgage executed by Mrs. Roberson to E. P. Quigley November 26, 1928, was superior to the mortgage of the life insurance company.

From that decree, the complainant, Lamar, and the respondent, Lincoln Reserve Life Insurance Company, have appealed.

The parties whose interests are affected by this appeal claim through and under J. Frank Roberson, who, on February 12, 1926, owned and was in possession of the property, and on said date his wife, Florida P. Roberson, joining therein, executed to the appellant Lincoln Reserve Life Insurance Company a mortgage purporting to secure an indebtedness of $12,500. This mortgage was filed for record in the probate office, in Birmingham, on the 13th day of November, 1926, and on November 27, 1927, was also filed in the probate office in Bessemer.

The documentary evidence further shows that Braley instituted a suit in the circuit court of Jefferson county, Bessemer division, on July 22, 1926, claiming a sum due for material and labor furnished and expended in improving the property, and claiming a mechanic's and materialman's lien thereon. On February 17, 1927, Braley obtained a judgment in his suit, in which it was declared "that the plaintiff has a lien and the same is hereby established on the following described property" (describing the property in controversy), and directing "that the clerk and register after the expiration of _____ days from" date of the judgment "issue to the sheriff of Jefferson County, a venditioni exponas ordering him to sell said property for the satisfaction of this judgment."

On the 28th of February, 1927, "E. C. Himes, Deputy Clerk," issued a paper in form, an execution and venditioni exponas, except that it was not addressed to the sheriff, or for that matter to any one.

The indorsement of the sheriff on the supposed writ is to the effect that it was levied on the property in controversy, which, after due advertisement, was sold on April 18, 1927, and at said sale Jim Sullivan became the purchaser of the property at and for the sum of $290, in cash, which was applied to the satisfaction of said judgment and the costs of the suit and of the sale, leaving a balance of $5.21 to be returned to the defendant Roberson.

On the same day, the sheriff executed to Sullivan a deed conveying to him "all the right, title, interest and estate which the said J. Frank Roberson had and held" in the property.

On November 20, 1928, Sullivan and wife by deed conveyed the property to Florida P. Roberson, the widow of J. Frank Roberson, deceased, reciting as the consideration thereof the payment of the sum of $3,733 by said Florida P. Roberson to redeem said property from said execution sale. This deed was acknowledged on the date of its execution, and was filed for record on November 27, 1928.

On November 26, 1928, Florida P. Roberson, through and by her attorney in fact, duly authorized thereto, executed a mortgage to Quigley, which was acknowledged on the date of its execution, and was likewise filed for record on November 27, 1928. This mortgage recited all of the proceedings, commencing with the suit of Braley, the rendition of the judgment, the sale thereunder, the execution of the deed, the redemption, the payment of the sum of $3,733 to Sullivan by Mrs. Roberson to redeem, the necessity of further payment of $185 to redeem from tax sale, and the loan of same with an additional amount to pay taxes, aggregating $4,200. This mortgage was also filed for record on the 27th day of November, 1928.

On November 17, 1928, Florida P. Roberson, reciting therein the payment, of $500 and other valuable consideration, executed a deed to complainant, which, according to the recital of a marginal note thereon, was delivered November 27, 1928, and filed for record on the same date. On the same day a mortgage was executed to Florida P. Roberson by complainant, which was also recorded.

There was nothing in the evidence, other than the recitals in the papers, going to show that any of the parties, including Quigley, advanced money to Florida P. Roberson, or that the complainant actually paid the consideration for the execution of the deed to him.

There was some evidence going to show that Sullivan paid the amount bid at the sheriff's sale, and there was evidence going to show that Braley performed the work and furnished material to Roberson in improving the property. But, there was no evidence, except the averment in the complaint filed by him in the circuit court, that he complied with the statute by filing an itemized statement of his claim under the mechanic's lien law.

The complainant offered evidence going to show that, after his purchase from Mrs. Roberson, the tenants in possession acknowledged complainant as their landlord and attorned to him, and the answer of the life insurance company admitted the averment that no suit was pending to test the title.

T. A. Murphree, of Birmingham, for appellant Lamar.

Thos. J. Judge and W. B. Harrison, both of Birmingham, and George Bumgardner, of Bessemer, for cross-appellant Lincoln Reserve Life Ins. Co.

John R. Boyle and Wm. C. Fitts, Jr., both of Birmingham, for cross-appellee Quigley.

BROWN, J. (after stating the facts).

The evidence, along with the admission of the answer of the defendant life insurance company, was prima facie sufficient to carry the burden to the defendant to establish its title or claim. Vidmer v. Lloyd, 193 Ala. 386, 69 So. 480, Ann. Cas. 1917A, 576.

All parties claim title under and through J. Frank Roberson deceased, and, it appearing without dispute that the mortgage to the life insurance company was executed by Roberson and wife prior to the accrual of the rights of complainant Lamar, and those under whom he claimed, other than Roberson, to secure a loan of money actually advanced to Roberson, if said mortgage was filed for record in the proper recording office, the...