Rothschild v. Bay City Lumber Co.

• Decision Date: 05 April 1904
• Citation: 139 Ala. 571,36 So. 785
• Parties: ROTHSCHILD ET AL. v. BAY CITY LUMBER CO. ET AL.
• Court: Alabama Supreme Court

36 So. 785

139 Ala. 571

ROTHSCHILD ET AL. v. BAY CITY LUMBER CO. ET AL.

Supreme Court of Alabama

April 5, 1904

Appeal from Chancery Court, Monroe County; Thos. H. Smith Chancellor.

Suit by the Bay City Lumber Company and others against K. E Rothschild and others. Decree for complainants, and defendants appeal. Affirmed.

The facts stated in the bill are as follows: In 1895 one Morris Simmons, then owner of the land in controversy, made a mortgage thereon to Rothschild & Bros. to secure a sum of money named in the mortgage, and all future advances, whether made before or after the law day of the mortgage, and the said mortgage was duly recorded in January of that year. In February, 1899, W. H. Louisell bought all the trees and timber on said land from Morris Simmons and wife, and received a proper deed therefor, which deed was duly recorded in the same month that it was executed. On the 1st day of March, 1900, said Morris Simmons and wife executed a deed conveying the said land to the defendants Rothschild & Bros which deed was recorded within a few days after it was made. In July, 1900, Louisell and wife conveyed the said trees and standing timber to complainants. Some time subsequent to this, complainants cut and removed a portion of the timber from said lands, and the remaining portion thereof still stands upon the said lands. During all this time said Morris Simmons lived upon the said lands, and cultivated a portion thereof. The complainants had no actual notice that the possession of said lands had ever been transferred from the said Simmons to the said Rothschild & Bros. until long after the cutting of said timber, and only a few months before the filing of the bill in this case learned that said Morris Simmons had made a deed conveying the said lands to the said Rothschild & Bros., and, at the time of the making of same received from the said Rothschild & Bros. an agreement permitting him to redeem the said lands at any time within two years; he then agreeing to hold the said lands as a tenant of the said Rothschilds, and to pay rent therefor. The bill further shows that complainants did not know of the existence of said mortgage at the time of their purchase from Louisell, but that they became aware of it shortly afterwards, and tried to redeem the said property from said Rothschild & Bros., but the said Rothschild & Bros. declined to let them know what was owing upon the indebtedness secured by the said mortgage; claiming that no one but Simmons had the right to redeem the property, and that they would not permit a redemption by any one else. At this time complainants had constructive notice of the deed which Simmons had made to Rothschild & Bros., but did not have actual notice of it. There is nothing in the deed from Simmons to the Rothschilds to indicate or show that its consideration was the indebtedness secured by the above-mentioned mortgage. It recites only the payment of a cash amount. Complainants, who had purchased the timber from Simmons before the making of the deed to the Rothschilds, and subsequent to the making of the mortgage, claim the right to redeem the said property by paying whatever may be found to be owing upon the indebtedness secured by the said mortgage averring that the amount thereof cannot exceed $325, and depositing that amount in the registry of the court. They aver that they have the right to have the Rothschilds look first to the land, as distinguished from the timber, for the satisfaction of the mortgage indebtedness, and pray to have the same subjected for that purpose, and offer to pay any balance of said mortgage indebtedness which may remain after applying thereto the proceeds of the said lands, as distinguished from the said timber. The bill further shows that the said Rothschild & Bros. have brought an action of trespass for the cutting by complainants of the said timber which action is pending in the circuit court of Monroe county, Ala., and the bill prays for an injunction against the further prosecution of said action at law. The bill also prayed for an accounting, and that the complainants be allowed to redeem the lands from Rothschild & Bros., and further prayed...