Rowe v. Bank of New Brockton

• Decision Date: 27 April 1922
• Docket Number: 4 Div. 952.
• Citation: 92 So. 643,207 Ala. 384
• Parties: ROWE ET AL. v. BANK OF NEW BROCKTON.
• Court: Alabama Supreme Court

92 So. 643

207 Ala. 384

ROWE ET AL. v. BANK OF NEW BROCKTON.

4 Div. 952.

Supreme Court of Alabama

April 27, 1922

Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.

Bill by the Bank of New Brockton against S. M. Rowe and others to subject stock in the bank to a lien for an indebtedness. The bill was later amended, by bringing in certain mortgagees and from an order overruling demurrers to the original bill the respondents appeal. Affirmed.

J. A Carnley, of Elba, for appellants Rowe.

Sollie & Sollie, of Ozark, for appellant Peebles.

W. W Sanders, of Elba, for appellee,

SAYRE J.

The Bank of New Brockton, a domestic corporation, filed the bill in this cause to foreclose its lien, under section 3476 of the Code, on shares of its stockholders S. M. and C.J. Rowe. The averment is that C.J. Rowe, the owner of 2 shares, is indebted to the bank in a large sum, and S. M. Rowe, the owner of 10 shares, is surety for the obligation of C.J. Rowe. Bankruptcy proceedings were pending against the principal debtor, and the trustee of his estate is made party defendant. By amendment E. B. Peebles and Mercer Rowe are brought in as parties defendant upon an averment, in substance, that defendant S. M. Rowe, with the intent to injure, delay, or defraud his creditors, had executed to Peebles a mortgage purporting to secure a large indebtedness, averred to be simulated, and that foreclosure proceedings, concocted with the same intent, had been had, at which Mercer Rowe became the ostensible purchaser. The court overruled joint and separate demurrers, and the decree to that effect is assigned for error.

We shall first consider the contention that equity is without jurisdiction in the premises for that the statute creating the lien provides a remedy which is exclusive in the absence of other considerations importing equity. Section 4829 of the Code answers this contention. Its provision in substance is that statutory modes, provided in the Code for the enforcement of liens are cumulative merely, and any lien may be enforced as provided by statute, in equity, by attachment, or as otherwise provided. The purpose of this act was to meet the rule of old cases such as are cited in the brief for appellant. The analogy of the cases cited in the opinion of the trial court, stating the result of the statute, sustain the equity of the present bill. Bynum Mercantile Co. v. Bank, 187 Ala. 281, 65 So. 815; Henderson v. Steiner-Lobman Co., 202 Ala. 325, 80 So. 407; Mathis v. Holman, 204 Ala. 373, 85 So. 710. There seems to have been some difficulty about the opinion in Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228. The bill in that case was filed long before the enactment of section 4829, which is new to the Code of 1907. The opinion shows that the decrees under review were dated more than a year prior to the date on which the Code went into effect. The decision followed the law of the date of the bill.

One ground of demurrer is that the bill contains no averment that it is necessary to sell the stock of S. M. Rowe the surety nor any that complainant had given notice or made personal demand for payment or satisfaction. These objections, adopted from the language of section 3476, lie only in case of a pursuit of the statutory remedy of a sale marked by the absence of such preliminaries, as the frame of the statute sufficiently indicates.

In the absence of a contract to the contrary, the obligation of the surety, who guarantees payment, is the same as that of the principal;...