McIntosh v. Hill

• Decision Date: 20 November 1924
• Docket Number: 8 Div. 664
• Citation: 102 So. 101,212 Ala. 136
• Parties: McINTOSH v. HILL.
• Court: Alabama Supreme Court

102 So. 101

212 Ala. 136

McINTOSH v. HILL.

8 Div. 664

Supreme Court of Alabama

November 20, 1924

Appeal from Law and Equity Court, Franklin County; B.H. Sargent Judge.

Bill in equity by T.C. Hill against J.H. McIntosh. From a decree for complainant, respondent appeals. Reversed and rendered.

Williams & Chenault, of Russellville, for appellant.

J. Foy Guin, of Russellville, for appellee.

ANDERSON C.J.

There can be little or no doubt that the complainant owned an undivided half interest in the barber shop fixtures, as distinguished from the pool room, and that the respondent's mortgage did not include said half interest and if the sale had been made solely under the mortgage and to satisfy the mortgage indebtedness alone, there could be little plausibility in the respondent's contention. But the proof shows that the mortgage indebtedness was only a portion of what was due McIntosh, and he had a considerable claim for back rent and which carried with it a lien on the complainant's interest in the barber shop fixtures as well as the other property in the building. It is also apparent that in the frequent and constant negotiations between Hill and McIntosh, Hill knew that the claim of McIntosh included the rent, and that the bid to be made at the sale by Hill, whether for himself or as agent for McIntosh, was for all the property subject to the city's lien for license, and included the rent as well as the mortgage debt, and which former was a charge against complainant's interest in the barber shop. Complainant claims to have paid his cotenant or partner a portion of the rent, but there is nothing to indicate that McIntosh had received it or ever released his lien for rent and did not intend the bid to include same. Hill did not protest against the sale and at no time indicated that his interest in the property was not subject to the rent. Indeed, it develops in the testimony that McIntosh was willing to make Hill some slight concession in the resale and rent, because of the burden falling on him and his interest in the property.

In other words, the conclusion is irresistible that in making the bid McIntosh intended to do so upon the idea of closing up the matter and acquiring all the property not only covered by the mortgage but by his landlord's lien, and that Hill knew of this purpose and intent and made no protest or objection to the sale of his interest. Had he objected or indicated that...