Russell v. Thornton

• Decision Date: 07 April 1927
• Docket Number: 7 Div. 674
• Citation: 112 So. 347,216 Ala. 60
• Parties: RUSSELL v. THORNTON et al.
• Court: Alabama Supreme Court

112 So. 347

216 Ala. 60

RUSSELL v. THORNTON et al.

7 Div. 674

Supreme Court of Alabama

April 7, 1927

Appeal from Circuit Court, Talladega County; R.B. Carr, Judge.

Bill in equity by Benjamin Russell against H.H. Thornton and others. From the decree, complainant appeals. Reversed and remanded.

S.J Darby, of Alexander City, and Jas. W. Strother, of Dadeville for appellant.

Knox Dixon, Sims & Bingham, of Talladega, for appellees.

GARDNER J.

The bill in this cause was filed by the appellant seeking the enforcement of his lien as landlord on certain property located in his building, rented by him to E.W. and Laura McDonald, who were the owners of the property in said building, and upon which enforcement of the lien is sought. The bill shows that, while the lien was in existence and a considerable amount of the rent past due, said tenants executed a mortgage on said property, the mortgagee having notice of said landlord's lien, and that the mortgagee is proceeding to foreclose said mortgage, which is subordinate to complainant's lien for rent, and that such sale will tend to the destruction of the landlord's lien. The mortgagee is made a party to the suit together with the tenants. The bill seeks to have complainant's lien as landlord enforced and held superior to the mortgagee's title, and temporary injunction is prayed against the foreclosure of the mortgage pending the determination of the cause.

Temporary injunction was issued; the defendants' motion to dissolve the temporary injunction for a want of equity in the bill was sustained; and complainant prosecutes the appeal from such decree.

The argument in support of the ruling of the trial court is rested upon the insistence that, so far as appears from the bill, complainant's remedy by attachment in a court of law is adequate, and that a court of equity was therefore without jurisdiction. The case of Westmoreland v Foster, 60 Ala. 448, has been construed as supportive of the equity jurisdiction for the enforcement of the landlord's lien, without regard to the attachment remedy at law. Greil Bros. Co. v. City of Montgomery, 182 Ala. 291, 62 So. 692, Ann.Cas.1915D, 738; Carmen v. Ala. Nat. Bank, 101 Ala. 191, 13 So. 581; Leader v. Romano, 208 Ala. 635, 95 So. 7.

In Coffey v. Hunt, 75 Ala. 236, the language of the court, here pertinent, in the Westmoreland Case, supra, was declared unsound dictum. Any attempted reconciliation of the authorities would, however, prove of no avail at this time, as very clearly such a lien is enforceable in equity under the plain provisions of section 8935, Code of 1923. Hood v. Martin, 205 Ala. 333, 87 So. 529; Mathis v. Holman, 204 Ala. 373, 85 So. 710; Wise v. State, 208 Ala. 58, 93 So. 886. The above-mentioned section appears in the report of the case.

In Mathis v. Holman, supra, section 4829, Code of 1907 (section 8935, supra), was construed and held applicable to the enforcement in equity of a mechanic's lien, and the view that such section was intended merely as declaratory of pre-existing law and practice and not as creating in courts of equity a new jurisdiction, was rejected as unsound, for, as said by the court, "Its language is...