Wofford Bond & Mortgage Co. v. Adams

• Decision Date: 26 March 1931
• Docket Number: 6 Div. 736.
• Citation: 133 So. 254,222 Ala. 527
• Court: Alabama Supreme Court
• Parties: WOFFORD BOND & MORTGAGE CO. v. ADAMS.

133 So. 254

222 Ala. 527

WOFFORD BOND & MORTGAGE CO. v. ADAMS.

6 Div. 736.

Supreme Court of Alabama

March 26, 1931

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill to foreclose a materialman's lien by W. L. Adams, doing business as the North Birmingham Lumber & Coal Company against Rosa B. Powell, H. M. Powell, and the Wofford Bond &amp Mortgage Company. From a decree for complainant, defendant Wofford Bond & Mortgage Company appeals.

Affirmed.

London Yancey & Brower, of Birmingham, for appellant.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, for appellee.

SAYRE J.

Appellee's bill sought to foreclose a materialman's lien on a house and lot the property of Rosa B. Powell. The Wofford Company, appellant, was made a party defendant, it being averred that it held a mortgage, inferior as a lien to appellee's lien under the statute, section 8832, Code. Appellee had a decree declaring its superiority to appellant's mortgage except as to some items of tax liens and street assessments discharged by the latter as to which there was no dispute, and it was decreed that appellant be subrogated to the prior liens and rights by which the taxes and street assessments in question had been secured. Otherwise appellee's lien under the statute was decreed to be superior to the lien of appellant's mortgage.

"Respondents" in their answer, May 2, 1930, represented to the court that appellee, complainant, had been adjudicated a bankrupt, and that no trustee or receiver had been appointed for his estate, and suggested that complainant had no authority to proceed further without an order from the federal court. In its amended answer appellant, defendant Wofford Company, suggested that pending the bill complainant Adams had been adjudicated a bankrupt, that his estate was in course of administration in the federal court, and that his alleged chose in action and claim of lien had passed by operation of law to his trustee, and hence that complainant had no right to further prosecute his suit. This suggestion was denied in and by the final decree.

The trustee or receiver appointed by the federal court had the option to decline to intervene in the state court if he deemed that course for the best interest of the estate and in that case he was bound by the decree rendered therein. 7 Corpus Juris, 147; Black on Bankruptcy, § 198, pp. 493-496. It follows that the proceeding in bankruptcy had no effect to deprive the state court of jurisdiction. Appellant cites Gayle v. Randall, 71 Ala. 469, decided in 1881 or 1882, as going to show that the cause in equity could not proceed without the presence of the trustee or receiver. In that case it was ruled that the assignee in bankruptcy, appointed before suit brought, had the exclusive right to assert by suit property rights vesting in the bankrupt under the Bankruptcy Law of 1867 (14 Stat. 517). That is not this case, and, in any event, the decisions of the federal courts under the statute now of force control.

Appellee furnished materials for the repair of an old house the property at the time of Rosa B. Powell. The contract for these materials was entered into May 2, 1927, and provided that "the entire amount of this order (the order for the materials) shall become due and payable thirty days from date of same, whether any part remains undelivered or not." This contract matured June 1, 1927. The last delivery made for improvements on the lot was of date August 1, 1927. Notice of lien filed in the office of the judge of probate December 7, 1927. Appellee's bill was filed January 14 1928. Appellant's contention is that the time for filing notice of the lien should date from June 1, 1927. The statute, section 8832, creates a lien, among other things, for work done or material...