Glass v. Tisdale

106 Ala. 581 | Ala. | 1894

COLEMAN, J.

— Section 3069 of the Code is as follows : “The landlord of any storehouse, dwelling house or other building, shall have a lien on the goods, furniture and effects, belonging to the tenant, for his rent, which shall be superior to all other liens, except those for taxes.” The paramount question in the case is, whether the lien provided in the foregoing statute in favor of landlords has priority over a mortgagee who sold “goods, furniture and effects” to the mortgagor and took a mortgage upon the property to secure the payment of the purchase money, and. which was fully executed before the landlord’s lien had attached. The complainant, Mrs. Glass, being the owner of the St. James Hotel, leased the same to Tisdale. A short time before the expiration of his term, she leased the property to other parties for a term of three years, to begin after the expiration of the lease to Tisdale. After the lease to these parties had been executed, but before the termination of his own lease, Tisdale sold the hotel furniture &c. to the lessees who were to succeed him, but took a mortgage from them on the property, to secure the payment of the purchase money. The mortgagors subsequently sold and delivered the property to their mortgagee leaving unpaid a balance due Mrs. Glass for rent. There was no lien on the property because of any liability of Tisdale. The bill shows that there was no period when the landlord’s lien could have attached to the displacement of Tisdale’s superior lien. The mortgage was taken at the time of the sale to secure the purchase money. It passed out of Tisdale and back to him at the same time and as a part of the same transaction. Such a transaction as to the rights of the parties, is very similar to that of a conditional. sale, the vendor reserving the legal title as a security for the purchase money. The purchaser only acquired an equity. — Bingham v. Vandergrift, 93 Ala. 283. In such a transaction we have held that the lien of the landlord was subject to the title of the vendor. Bingham v. Vandergrift, supra.

We further held that a mortgage executed in pursuance of the contract of sale, to secure the purchase money, is not fraudulent and void as to the creditors of the purchaser and mortgagor. — Adkins v. Bynum, 19 So. Rep. 400. The former opinion written in this case is withdrawn and this substituted in its stead. We adhere to the conclusion reached in our former opinion, and the motion for a new trial must be overruled.

Affirmed.