Strickland v. Carroll, 8 Div. 532.

• Decision Date: 12 April 1934
• Docket Number: 8 Div. 532.
• Citation: 154 So. 109,228 Ala. 498
• Parties: STRICKLAND et al. v. CARROLL.
• Court: Alabama Supreme Court

154 So. 109

228 Ala. 498

STRICKLAND et al. v. CARROLL.

8 Div. 532.

Supreme Court of Alabama

April 12, 1934

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Bill in equity by W. E. H. Stephens against Bertha Strickland, John U. Carroll, and others, and cross-bill by respondent Carroll. From a decree granting relief under the cross-bill respondents Strickland and others appeal.

Reversed and remanded.

Street & Bradford, of Guntersville, for appellants.

Claud D. Scruggs, of Guntersville, and Thos. E. Orr, of Albertville, for appellee.

THOMAS Justice.

The bill was a statutory procedure to quiet title to land. The parties were those entitled to share in the distribution of the estate of one H. H. Stephens and one J. U. Carroll claiming as mortgagee.

The answer of the latter was made a cross-bill, praying that it be decreed that he had a first lien on the property and for foreclosure or due enforcement of his superior lien upon that property.

The record presents an unfortunate family controversy about the lands and other property of the deceased ancestor. And the suit was brought after the death of the mother, who is alleged to have acted in the premises by direction of her husband. Had she been in life when the bill was filed and trial had, she could have spoken with assurance of what Mr Stephens desired and what acts he did as to the properties in question. De Freese et al. v. Vanderford et ux., 220 Ala. 360, 125 So. 228.

We cannot say from the evidence that complainant has shown that a gift was intended by that parent to the exclusion of his other children. A detailed discussion of the evidence would serve no good purpose.

It is asserted that the chief dispute on this appeal is with Carroll, the mortgagee. It is urged that there was collusion between complainant and Carroll. The burden was upon the original respondents (respondents in the cross-bill of Carroll) to show there was such collusion and fraud against appellants; that is, that the purpose of the acts of complainant and Carroll was to make the lands pay a personal obligation of complainant to Carroll, to the exclusion of the prior mortgage of complainant to the father held by all the heirs at law. The mortgage of complainant to the father was of date of September 13, 1920, and that of complainant to Carroll of date of March 2, 1926. The answer of appellants to Carroll's cross-bill and their insistence in brief were to the effect that, if Carroll held such mortgage, it was subordinate to the mortgage of the complainant to his father H. H. Stephens.

The evidence showed that the mortgage from the son to the father had not been paid, and supported the finding that it was not or had not been satisfied by due authority of that mortgagee.

The evidence further showed that Carroll's mortgage was to furnish the means for making improvements on the mortgaged premises, which had the effect of enhancing the value of the property secured by the mortgage from complainant, W. E. H. Stephens, to his father, H. H. Stephens. The testimony of Carroll was that the mortgagor obtained the money for the building or completion of the shop, the completion of the walls of other buildings, to put in a cement floor to the alley, etc., and to erect another structure on the land.

The evidence of complainant, W. E. H. Stephens, corroborated the evidence of Carroll as to the improvements made upon the lot with the money he borrowed from Carroll. There is no evidence, that the senior mortgagee, H. H. Stephens, or these respondents assented to such loan and use of the money, or that they were estopped to ask foreclosure of the first mortgage.

It is declared in Shaddix v. National Surety Co., 221 Ala. 268, 271, 128 So. 220, 222: "It is very well settled that if the money was advanced for the purpose of discharging a lien, and was used to do so, and that they were to have security on the land, they would be subrogated to the rights of the lienor. Under such circumstances, they would not be volunteers, and their rights would be superior to all those inferior to the lien which they paid."

It may be said generally that subrogation arises when the person seeking the aid of that rule has paid a debt due by another to a third person, and that the former (prior to payment) sustains a relation to that debt or property obligation which makes it necessary to pay the same to protect his claim or lien. Woodruff v. Satterfield, 199 Ala. 477, 74 So....