Miller v. Griffin

• Decision Date: 05 April 1894
• Citation: 15 So. 238,102 Ala. 610
• Parties: MILLER v. GRIFFIN ET AL.
• Court: Alabama Supreme Court

15 So. 238

102 Ala. 610

MILLER v. GRIFFIN ET AL.

Supreme Court of Alabama

April 5, 1894

Appeal from chancery court, Shelby county; S. K. McSpadden Chancellor.

Bill by Thomas G. Griffin, Sr., and others, against J. W. Miller and others, to foreclose a mortgage. Decree for complainants. Said Miller appeals. Reversed.

The mortgage was given by J. M. Anderson & Co. to the heirs of Paul H. Nabor, deceased, to secure the payment of the purchase money for certain land which had been sold by said heirs to J. M. Anderson & Co. The bill recited, and the mortgage which was made and executed to the appellee showed that it was given, not only upon certain real estate, but also upon one sawmill, which was situated upon the land at the time of the execution of the mortgage. The mortgage however, also recited that this was a second mortgage on the sawmill. J. W. Miller, one of the defendants to the original bill, filed his answer, and asked that the same be taken as a cross bill, alleging therein that, at the time of the execution of the mortgage by J. M. Anderson & Co. to the Nabor heirs, the sawmill, engine, boiler, and other appurtenances thereto were under a mortgage lien to him which was given to him by one Hamlet and J. M. Anderson on June 12, 1884, to secure the purchase price of said sawmill, engine, boiler, etc., and that at the time of the execution of the mortgage to the Nabor heirs there was a balance due upon said mortgage made by Hamlet and Anderson, and that the said complainants knew of the existence of this mortgage at the time Anderson & Co. executed the mortgage to them. The prayer of the cross bill was that the said J. W. Miller be decreed to have a lien prior to the lien of the original complainants, sought to be enforced by the bill. The other facts of the case are sufficiently stated in the opinion. On the final submission of the cause on the pleadings and proof, the chancellor decreed that the mortgage of the original complainants covered, not only the land and other property embraced thereon, but also the sawmill, engine, boiler, and appurtenances thereto, and that J. W. Miller's mortgage was subordinate to that of the original complainants.

J. M. Martin, for appellant.

Henry Wilson, for appellees.

COLEMAN J.

The appellees filed their bill to foreclose a mortgage executed by Anderson & Co. upon certain real estate described in the bill. The bill avers that there was a boiler and engine and sawmill on the land, which was a part of the realty, and included in the mortgage. This mortgage was executed June 19 1889, and filed for record on the 18th day of August, 1889, J. W. Miller was made one of the parties defendant. He answered and filed a cross bill, setting up a prior mortgage executed to him by one A. B. Hamlet and J. M. Anderson on the 12th day of June, 1884, on the engine, boiler, and mill and fixtures. This mortgage was duly recorded in probate court of Bibb county, in which county the property, at that time, was situated. The answer and cross bill also set up a subsequent mortgage, executed on the same property to Miller by Anderson & Co. on the 22d of July, 1889, which was duly recorded on the 24th of July, 1889. It will be seen from this statement of facts that the mortgage to complainants, though prior in point of date to the second mortgage to J. W. Miller, was not filed for record nor recorded with 30 days from its date, and that the second mortgage to Miller was executed and recorded before the registration of...