108 So. 345 | Ala. | 1926
The appellee, as owner of a house and lot, filed this bill of interpleader or in the nature of an interpleader against numerous claimants of a mechanic's lien and none of whom being the original contractor could have preference or priority under the terms of section 8854 of the Code of 1923. The bill admits a balance due, and offers to bring it into court, and prays for an adjustment between the different claimants thereto and for a discharge. The equity of such a bill is well recognized by the leading text-writers as well as by many decisions of the appellate courts. 4 Pomeroy (3d Ed.) § 1320, p. 2634; Story's Equity (14th Ed.) vol. 2, § 1140; McDonald Co. v. Stern,
The bill is in no sense one to redeem, and the complainant did not have to tender the money into court, as a court of equity can compel the deposit of the fund as a condition precedent to the relief sought.
We do not think that the procurement of the judgment by Baldwin, under the circumstances outlined in the bill of complaint, could operate to give him a preference over other claimants of the same class in violation of section 8854 of the Code, and it seems that the complainant, in a bill in the nature of an interpleader, has a right to seek affirmative relief. That is, not only may the court of equity settle the matter between the rival claimants, but cancel all liens or incumbrances against him arising out of the transaction. Illingworth v. Rowe, supra.
Nor does this render the bill multifarious. Section 6526 of the Code of 1923.
The demurrer to the bill of complaint as amended was properly overruled, and the decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.
