Shields v. Hightower

• Decision Date: 22 April 1926
• Docket Number: 8 Div. 827
• Citation: 214 Ala. 608,108 So. 525
• Parties: SHIELDS et al. v. HIGHTOWER et, al.
• Court: Alabama Supreme Court

108 So. 525

214 Ala. 608

SHIELDS et al. v. HIGHTOWER et, al.

8 Div. 827

Supreme Court of Alabama

April 22, 1926

Rehearing Denied May 20, 1926

Appeal from Circuit Court, Limestone County; O. Kyle, Judge.

Bill in equity by L.C. Hightower and others against John W. Shields and others, and cross-bills by respondents Shields and Yarbrough. From the decree, cross-complainants appeal. Affirmed in part, reversed in part, and remanded.

E.W Godbey, of Decatur, for appellants.

R.B Patton, of Athens, and Coleman, Coleman, Spain & Stewart, of Birmingham, for appellees.

MILLER J.

This cause has been here before on decree overruling demurrers to the bill of complaint as amended. Yarbrough v Hightower, 211 Ala. 262, 100 So. 126. The bill, as amended, was filed by the sureties on the official bond of E.C. Robinson as tax collector of Limestone county. The tax collector defaulted. His sureties on his official bond paid the shortage, which was reduced to judgment against them. The complainants, the sureties, seek to be subrogated to the lien of the state and county under the statute upon certain real estate owned by E.C. Robinson during his term of office, which was sold by him to the different respondents, or to their respective vendors, and on some real estate still owned by him on which he gave a mortgage during his term of office to C. Pepper, Sr., to secure the sum of $4,000.

John W. Shields and C.A. Yarbrough, respondents, each filed separate answers in the nature of cross-bills, by which each sought to have the property of E.C. Robinson first sold, and, if that was insufficient to pay the judgment satisfied by the complainants, then to have sold that property of Robinson that was owned and conveyed by him during his term of office in the inverse order of its alienation, and to have these respective cross-complainants subrogated to the rights and interests of incumbrancers that held incumbrances on their respective lands prior to E.C. Robinson's becoming tax collector, and that were paid off with funds furnished by the respective grantors of these respective cross-complainants, and who were grantees of E.C. Robinson, and "also to be subrogated to incumbrances which appellants' funds or their respective grantors' paid off that were on the land deeded to Robinson before the deeds were made"; and for payment for permanent improvements made by them on the land.

The complainants and the defendant C. Pepper, Sr., demurred to each cross-bill and to parts of each cross-bill. The court by decree sustained demurrers of C. Pepper, Sr., "to the cross-bill of John W. Shields and C.A. Yarbrough." The court by decree ordered that demurrer of complainants to the cross-bill of C.A. Yarbrough and the demurrer of complainants to paragraphs 3, 4, 5, 8, and 9 of said cross-bill be, and the same are hereby, sustained; and the court by decree ordered that the demurrer of complainants to the cross-bill of John W. Shields and the demurrer of the same parties to paragraphs 3, 4, 5, 8, and 9 thereof be, and the same are, sustained. It thus appears the court sustained demurrers of Pepper to each cross-bill as a whole, and the court sustained demurrers of the complainants to each cross-bill as a whole and to parts of each cross-bill. These decrees are appealed from separately by John W. Shields and C.A. Yarbrough, and each assigns separately each decree as error.

It appears that E.C. Robinson now owns some real estate which was owned by him during his term of office; and that during his term of office he sold and conveyed at different times to different persons certain real estate mentioned in the amended bill and in the cross-bills. These cross-complainants are vendees or subvendees of some of this real estate, and they have an equitable right, and are entitled in equity, to have complainants exhaust, first, the property belonging to and remaining in possession of E.C. Robinson in satisfaction of the lien of the state and county, which they paid; and, if that property of Robinson is insufficient to satisfy the same, then complainants must sell and exhaust that property conveyed by Robinson in the inverse order of its alienation. This equitable principle is clearly stated in 34 C.J. 618, § 942, headnote 39. It has been approved by this court in Relfe v. Bibb, 43 Ala. 519, 520; Gordon v. Bell, 50 Ala. 213, 220; N.W.L. Ass'n v. Harris, 114 Ala. 468, 21 So. 999. These averments in each cross-bill gave it equity, and the court erred when it sustained the demurrers to the cross-bills and to parts of the cross-bills seeking such relief. Authorities supra.

This bond of the tax collector, Robinson, is a lien upon the property of Robinson from the date of its execution. Section 2603, Code of 1923. And purchasers from Robinson of his real estate "are charged by law with notice of the lien, and can acquire no right or interest which is not subordinate to it." Knighton v. Curry, 62 Ala. 404, and Randolph v. Brown, 115 Ala. 677, 682, 22 So. 524. The cross-complainants are each subvendees of Robinson, the tax collector, and each knew, or had constructive notice, when the improvements were made by them on the land, that the state and county had a lien on the property, which was owned by Robinson during the term of his office. The improvements, permanent in nature, made by cross-complainants on their respective pieces of real estate would not be a claim superior to the lien of the state and county through the bond of the tax collector thereon, to which lien the complainants seek to be subrogated. Faulk v. Calloway, 123 Ala. 325, 334, 26 So. 504; Yarbrough v. Hightower, 211 Ala. 262, 100 So. 126; and authorities supra. It results that the demurrers to that part of the cross-bills seeking payment for permanent improvements on the land made by them respectively were properly sustained by the court. Authorities supra.

Robinson entered on the duties of the office of tax collector on October 1, 1917, and served out his term, which ended September 30, 1921. Robinson conveyed by warranty deed, with usual covenants, certain land, on December 11, 1917, to Critz Wallace for a recited cash consideration of $6,000. It was duly recorded on January 12, 1918. Robinson had, on October 15, 1913, executed to W.T. Sanders as administrator a mortgage on this land, which he sold and conveyed to Critz Wallace, and the amount due and unpaid on said mortgage was $2,140.14, when Wallace purchased the land from Robinson; and $2,140.14 of this purchase money of Wallace's was used by Wallace to pay and satisfy this mortgage to Sanders as administrator. Wallace by this conveyance purchased and secured from Robinson his equity of redemption in this land, and, on his paying off this prior mortgage thereon, he thereby became entitled to be subrogated to the rights of the mortgagee, and this mortgage was given by Robinson on this land before he became tax collector, and was a superior lien on the land to the extent of the debt secured ($2,140.14) and paid by Wallace to the lien of the state and county under the bond of Robinson.

This court, in Fidelity & Deposit Co. v. Richeson, 213 Ala. 461, 105 So. 193, stated the rule as follows:

"The purchaser of an equity of redemption upon paying off prior mortgages is subrogated to the rights of the mortgagees paid off, the mortgages paid being considered part of the purchaser's title to the premises."

See, also, Faulk v. Calloway, 123 Ala. 325, 26 So. 504; Stone v. Davenport, 200 Ala. 396, 76 So. 312.

Wallace was entitled to equitable subrogation to the lien of the mortgage of Sanders, as administrator, to the extent that his purchase money was used by him in...