115 So. 103 | Ala. | 1928
A junior incumbrancer will not be permitted to enforce the incumbrance of the senior for the payment first of the senior demand and next of 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 for the satisfaction of his own demand. Mimms v. Cobbs,
Edgar Allen, of Birmingham, for appellee.
A junior mortgagee may foreclose his mortgage subject to the lien of prior mortgages and incumbrances, and respondents are estopped to set up the defense of superior outstanding mortgage. Graham v. Partee,
The terms of the second mortgage matured that debt before law day of the first mortgage, and gave the right of foreclosure upon default. In Graham v. Partee,
The sale, sought by the bill, would vest title in the purchaser subject to the lien, securing the unmatured debt of the first mortgagee, and was not an effort to require foreclosure of the first mortgage for the payment of that debt and application of any balance to the second mortgage.
The lack of the latter effort differentiates *167 this case from the authorities cited by appellant. In such cases it is declared that a junior incumbrancer will not be permitted in equity to "enforce the incumbrance of the senior, for the payment, first, of the senior demand, and next" that of his own.
The remedy is to establish superiority and to redeem the land from the senior incumbrance or lien, and then enforce his lien or that acquired for reimbursement and satisfaction of his own demand. Hamilton v. Cody,
The judgment of the circuit court in equity is affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.