Scott v. Land, Mortgage, Investment & Agency Co. of America

• Decision Date: 23 June 1900
• Citation: 127 Ala. 161,28 So. 709
• Court: Alabama Supreme Court
• Parties: SCOTT ET AL. v. LAND, MORTGAGE, INVESTMENT & AGENCY CO., LIMITITED, OF AMERICA.

28 So. 709

127 Ala. 161

SCOTT ET AL. v. LAND, MORTGAGE, INVESTMENT & AGENCY CO., LIMITITED, OF AMERICA.

Supreme Court of Alabama

June 23, 1900

Appeal from chancery court, Lowndes county; W. L. Parks, Chancellor.

Bill by the Land, Mortgage, Investment & Agency Company, Limited, of America, against Brown Scott and others, to establish a lien on certain realty, and to enjoin proceedings to enforce a judgment in ejectment. From a decree for plaintiff defendants appeal. Affirmed.

The bill in this case was filed by the appellee on November 2 1899, against Brown Scott, Liddy Scott, George E. Gordon and Benjamin Graham. The facts averred in the bill may be summarized as follows: Prior to December 28, 1891, Brown Scott, one of appellants, applied to the Loan Company of Alabama to negotiate a loan for him on certain lands in Lowndes county, and said Loan Company procured the complainant to agree to loan $320 to the said Brown Scott on said lands. That on December 28, 1891, the said Brown Scott executed his promissory notes for that amount, and to secure the payment of the same he and his wife executed and delivered to the complainant a mortgage on the lands. That in his application Scott represented that the money borrowed was to be applied to the satisfaction of a vendor's lien in favor of Simpson Goodwin, from whom the lands were purchased by Scott, and that, in pursuance of the agreement between complainant and Brown Scott, complainant paid over the sum borrowed from it to the said Goodwin, and thereupon Goodwin released his vendor's lien and canceled the promissory note which he had taken from Scott, which recited the vendor's lien for the balance of the purchase money. That no part of the mortgage debt due to complainant by Brown Scott had ever been paid. Complainant foreclosed its mortgage in 1895 under a power of sale contained therein, and had Benjamin Graham to purchase the same for it. That said Graham had held the land and collected the rents during the years 1895, 1896 and 1897 from Brown, to whom they were rented, but that in 1898 the said Brown Scott brought an action of ejectment against said Graham to recover the lands described in the mortgage, and on account of the same being defectively acknowledged, and the lands being a homestead, the said Brown Scott succeeded in the fall of 1899 in recovering said lands in his ejectment suit, but that orator had paid off the said claim of the vendor, Simpson Goodwin, as aforesaid, without notice that the acknowledgment was defective. That defendant Gordon claims some interest in the lands, but it was subordinate to said claim of complainant.

The prayer of the bill is, that complainant be decreed to be subrogated to the rights of Goodwin, the vendor, to the amount of the purchase money paid him by complainant, and a lien decreed in his favor upon the lands for said sum and also for the amount of taxes paid out; that its lien be declared superior to that of defendant Gordon, and Scott be enjoined from proceeding to enforce his judgment in the ejectment suit; that upon Scott's failure to pay the amount due to complainant the lands be ordered sold for the satisfaction of complainant's lien.

To this bill the defendants Brown Scott, Liddy Scott and George E Gordon demurred upon the following grounds: (1) There is no equity in said bill. (2) It is not alleged or shown that complainant was ever the owner of the debt or obligation of the said Brown Scott to the said Simpson Goodwin. (3) It appears in and by said bill of complaint that the debt of said Brown Scott to the said Simpson Goodwin had been, prior to the beginning of this suit, wholly paid and extinguished. (4) It is not alleged that complainant was at the time of the filing of said bill of complaint the owner of the said debt or obligation of the said Brown Scott to the said Simpson Goodwin. (5) It appears in and by the allegation of the said bill of complaint that the said Brown Scott was not at the time of the filing of said bill indebted to the said Simpson Goodwin, or to any one else, for the purchase money of the lands described in the bill of complaint, or for any part thereof. (6) It appears in and by the allegation of the said bill of complaint that the said conveyance by the said Brown Scott to the complainant was invalid at the time of its execution, and that the same cannot now be enforced. (7) It appears by said bill that said complainant has a complete and adequate remedy at law.

On the submission of the cause on the demurrers, the...