145 So. 318 | Ala. | 1932
The question in this case is whether the failure to comply with the statute of nonclaim (section 5815, Code) prevents the enforcement of the lien provided for in section 7000, in favor of a corporation against its stockholders on their shares of stock to collect a debt for borrowed money. The suit is in equity, and the claim was not filed or presented so as to comply with section 5815, Code. The chancery court held that the lien is enforceable on the stock.
Appellant seeks to apply a distinction drawn in some of the cases between a lien created by law and one created by contract, in that the former is dissolved by the death and insolvency of the debtor, but not so as to the latter. McKinney v. Benagh,
But when we analyze the holding as to such liens we find that the lien which is said thus to die is not such as grows out of a contract, though declared by law, as one which the law creates to secure a debt under stipulated circumstances. In McKinney v. Benagh, supra, it was held that a landlord's lien to secure advances to a tenant to make the crop is not within this definition of a statutory as distinguished from a contract lien. When a contract is made with no expressed stipulation for a lien, but under circumstances where the law establishes one, it is as though the parties had thus expressed in their contract. To have a different effect it must be so agreed. Such a lien is one which springs from a contract, though the contract makes no reference to it. McDonald's Adm'r v. Morrison,
But those which are said to die with the death and insolvency of defendant, and not allowed to be revived, are such as are created by the institution of certain proceedings, when they did not otherwise exist, as by garnishment, or attachment, and which do not survive the death and insolvency of defendant, because when a judgment is rendered against the administrator of an insolvent estate, the court does not order an execution on such judgment, but orders that the same be certified as an established claim to the probate court of said county. McKinney v. Benagh, supra, page 362 of 48 Ala., McEachin v. Reid,
In Halfman's Ex'x v. Ellison,
Of course, if the lien sought is statutory, and does not arise out of contract, and does not exist after a contingency provided by law, it cannot be enforced after such contingency has occurred. But a lien is a property right when it grows out of contract, though provided by law, and usually survives the death and insolvency or bankruptcy of the debtor.
This court has through a long line of cases held that though the failure to present the claim as a debt against the estate bars its collection out of the estate as a simple creditor, it does not prevent the enforcement of a lien contracted to secure it. Duval's Heirs v. McLoskey,
But appellant argues that a different result follows when the effort is to enforce a lien created by law, such as this one is claimed to be, because of the argument that the statute of nonclaim not only bars the collection of the debt but nullifies and destroys it, and in that respect is distinguished from the bar of the statute of limitation. To this we say, it is essentially a lien created by contract though declared by law, and there is no distinction in principle such as argued, between it and one which the debtor expressly creates.
To the argument that the statute of nonclaim is more than a statute of limitations and cancels the debt, not merely the remedy, as held in some of our cases (Branch Bank at Decatur v. Hawkins,
We take it that the questions submitted on this appeal have long since been correctly determined in favor of the ruling of the chancery court.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.