Morris v. Southern Realty & Construction Co.

• Decision Date: 15 January 1920
• Docket Number: 6 Div. 943
• Citation: 203 Ala. 600,84 So. 809
• Parties: MORRIS v. SOUTHERN REALTY & CONSTRUCTION CO. et al.
• Court: Alabama Supreme Court

84 So. 809

203 Ala. 600

MORRIS v. SOUTHERN REALTY & CONSTRUCTION CO. et al.

6 Div. 943

Supreme Court of Alabama

January 15, 1920

Appeal from Circuit Court, Jefferson County; Lum Duke, Judge.

Bill by E.A. Morris against the Southern Realty & Construction Company and others. From a decree sustaining demurrers to the bill, the complainant appeals. Reversed and remanded.

The case made by the bill is that the Southern Realty &amp Construction Company had charge of certain machinery for the purpose of disposing thereof, and that one Charles Lehman held a mortgage on it. Having an opportunity to sell a part of the machinery, the Southern Realty & Construction Company applied to Lehman for a release to that portion from his mortgage. Lehman declined to release any part of the machinery until his mortgage debt was paid, whereupon the Southern Realty & Construction Company applied to Morris to buy the Lehman mortgage, with the agreement that after the mortgage debt and the expenses were paid Morris and the Southern Realty & Construction Company would share equally the profits. Morris bought the Lehman mortgage with money borrowed from the Bank of Ensley, executing a demand note therefor and putting up the Lehman mortgage as collateral security. Later the machinery was sold, but the purchaser would not pay for the same until all liens were cleared, and the Bank of Ensley delivered the Lehman mortgage to Morris to be turned over to the purchaser upon receipt of the certified check. The check for $11,000 was given on and certified by the American Trust & Savings Bank to Morris, the Southern Realty & Construction Company having received a check for $7,000, the other part of the purchase price. Morris took the certified check to the Bank of Ensley, with instructions to it to pay itself the $5,000 with accrued interest, and to place the balance to the credit of Morris. In the meantime the Southern Realty & Construction Company notified the Bank of Ensley not to pay the balance to Morris, but place it to the credit of the Southern Realty & Construction Company. Learning of this, Morris declined to surrender the check, but retained it and filed this bill for the proper adjustment of the claims of all parties.

W.H Smith, M.L. Ward, and Haley & Haley, all of Birmingham, for appellant.

Weatherly Deedmeyer & Birch and Thomas J. Judge, all of Birmingham, for appellees.

THOMAS J.

The bill avers facts showing that the American Trust & Savings Bank is in possession of a $11,000 trust fund in which the Bank of Ensley has an interest of about $5,000, as the holder of a mortgage on property sold, and from which the $11,000 was obtained, and that the amount in excess of the latter bank's equity is claimed by complainant and the respondent Southern Realty & Construction Company. All parties at interest are properly before the court (Perkins Livingston & Post v. B.I. & C. Co., 77...