U.S. Fidelity & Guaranty Co. v. Singleton

• Decision Date: 13 October 1921
• Docket Number: 4 Div. 932.
• Citation: 90 So. 296,206 Ala. 437
• Court: Alabama Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. SINGLETON et al.

90 So. 296

206 Ala. 437

UNITED STATES FIDELITY & GUARANTY CO. v. SINGLETON et al.

4 Div. 932.

Supreme Court of Alabama

Oct. 13, 1921

Appeal from Circuit Court, Bullock County; J.S. Williams, Judge.

Bill by the United States Fidelity & Guaranty Company against A.E Singleton and others. From a decree sustaining demurrers to the bill, the complainant appeals. Affirmed in part and reversed and remanded in part.

Coleman Coleman & Spain, of Birmingham, for appellant.

Norman & Rainer and R.E.L. Cope, all of Union Springs, for appellees.

GARDNER J.

Upon the former appeal in this cause (Singleton v. U.S.F. & G Co., 195 Ala. 506, 70 So. 169) only the demurrers of S.P. Rainer and J.H. Rainer, Jr., were argued and considered. Subsequent to the rendition of that opinion the bill was amended by eliminating J.H. Rainer, Jr., as a party to the cause, and in other respects hereinafter mentioned. The British-American Mortgage Company and S.P. Rainer filed additional demurrers to the bill as amended, and from the decree sustaining these demurrers the complaint prosecutes this appeal.

The complainant filed this bill as surety upon the bond of A.E. Singleton, formerly judge of probate of Bullock county, seeking to be subrogated to the lien of said county upon an undivided one-half interest of said Singleton in the real estate described in the bill, and thus be reimbursed for the sum paid by complainant to the county in satisfaction of the indebtedness due by Singleton as judge of probate thereto, and to this end a sale of the real estate is sought. For a more detailed statement of facts reference is made to the opinion on former appeal.

The bill shows that said Singleton, prior to the execution of his official bond, had executed a mortgage upon the real estate here involved to the British-American Mortgage Company, which was promptly and duly recorded, outstanding and unpaid at the time of the filing of this bill. The validity of this mortgage is not questioned, but the bill recognizes that the lien to which complainant seeks to be subrogated is subject to this prior mortgage. The demurrer of the British-American Mortgage Company takes the point that the bill fails to show that complainant paid, or offered to pay, the indebtedness due under this respondent's prior mortgage, or any excuse for failing to do so, and this presents the pivotal question for decision.

We are of the opinion that the demurrer was well taken. "It is a principle well settled in this court, under our recent decisions, that a junior incumbrancer will not be permitted to go into equity to enforce the incumbrance of the senior and his own, for the payment, first, of the demand of the senior, and, next, his own. His remedy is to redeem the land from the senior incumbrance, and then proceed to enforce his lien upon the land for his reimbursement of the redemption money, and the satisfaction of his own demand." Mims v. Cobbs, 110 Ala. 577, 18 So. 309. See. also, Kelly v. Longshore, 78 Ala. 203; Randolph v. Billing, 115 Ala. 682, 22 So. 468; Threefoot Bros. v. Hillman, 130 Ala. 244, 30 So. 513, 89 Am.St.Rep. 39. This is the generally recognized rule, as appears from section 1439, 2 Jones on Mortgages, and citations thereto.

The case of City Bank & Trust Co. v. Leonard, 168 Ala 404, 53 So. 71, cited by counsel for appellant, does not in any manner militate against the conclusion here reached and, in fact, the opinion there quotes liberally from the above-cited section of Jones on Mortgages, which, as previously noted,...