129 Ala. 306 | Ala. | 1900
Under tbe view I take of tbe case made by the bill, it is unnecessary to determine tbe question of estoppel raised against the respondent Mrs. Hurley, or tbe merit or demerit of tbe amendment to tbe bill alleging that tbe deed executed by her husband to her to tbe lot, sought to be condemned to tbe satisfaction of tbe complainant’s mechanic’s lien, was fraudulent; for the very obvious reason, that if it be admitted that both contentions are meritorious, tbe complainant could take nothing under either of them. The lot at tbe time of tbe filing of tbe bill, as shown by its allegations, bad become tbe property of tbe Building & Loan Association by virtue of a purchase at a foreclosure sale under a
The bill contains no averment of any actual notice by the purchaser of the estoppel sought to be enforced against Mrs. Hurley to the end of precluding her from asserting her title under the deed. She appears by 'the chain of title as shown upon the record to be the owner of the equity of redemption by conveyance properly executed and recorded before the repairs were made by the complainant on the house. The. lien was filed against the husband as owner. This was the state of the title at the time the purchase was made. It is perfectly clear' to my mind that on this state of facts the purchaser was not chargeable with constructive notice of complainant’s lien. It may be said to all this, and in fact it is urged, that as the mortgagee was the purchaser, it cannot claim the benefit of this doctrine for the reason that it was chargeable as purchaser with the same knowledge or notice it possessed as mortgagee; a proposition I do not deny, but which I insist has no application to this case. The right of the holder of a mechanic’s lien to enforce it upon the building for repairs against a prior mortgagee is in nowise dependent upon notice either actual or constructive, but has its origin in the statute, section 2724 of the Code. The principle doubtless underlying the purpose of its enactment was to prevent a mortgagee from taking the benefits of the betterments put upon the property to the end of restoring to him his original security for his debt, without paying to the mechanic, the value of the repairs. And this- the statute does, without reference to his knowledge of the repairs being made upon the house conveyed by the mortgage. But the rights of a purchaser at a foreclosure -sale stand upon a very different footing. It will be well to observe that section 2724
It is also urged that the complainant is not bound to aver notice in his bill on the part of the Association of the estoppel; but that the burden is upon it to invoke the defense of bona fide purchase for value, without notice, by plea or 'answer; and this is the view entertained by the majority of the court. I do not doubt that where the purchaser's title is not disclosed by the bill that the rule as contended for is applicable. But where the bill discloses the title of the purchaser and as disclosed, it is not subordinate to the lien sought to be enforced, it is clear to my mind that the bill is without equity. And where the complainant's relief, as here, must depend upon an equity of which the respondent purchaser had actual notice, the bill must aver the notice. Certainly it will not be disputed that the burden would be upon complainant to prove it.—Hightower v. Bigsby, 56 Ala. 126. And as notice is an essential fact, indeed the very foundation fact upon which his relief must depend, he should be required to aver it. It is the essence of the equity of his bill. However, as indicated, a majority of the court hold (a conclusion, in which the writer cannot concur), that if the complain-an t proves the matter of estoppel averred in the second paragraph of the amendment filed February 2, 1900, to bill, he is entitled to subject the house to the satisfaction of his lien.—Hawkins Lumber Co. v. Brown, 100 Ala. 217; Wadsworth v. Hodge, 88 Ala. 500.
The other phase of the bill, about which there is no disagreement between us, is predicated upon the plaintiff's right to have his debt paid out of certain money arising out of a policy of insurance which is now in the possession of the respondent, bank. To this end, it is averred that when the complainant made the contract with W. F. Hurley, the debtor, to furnish the
From the foregoing' averments it does not appear that the policy of insurance was legally or equitably assigned. It is not averred that it was delivered either to the complainant or to Brannen. Construing the aver-ments, as upon demurrer, we would be bound to hold that they show simply an attempted assignment of a portion of the sum to be collected upon the policy. In effect a mere agreement between Hurley and complainant- that his debt would be paid out of a partieuar fund;
We do not wish to be understood, however, as holding that the complainant is entitled to any portion of the money to the exclusion of the Building & Loan Association. For, if it be shown, as is inferentially admitted in tlie bill, that the loss was payable to the Association as its interest may appear, the Association would have the. first right to be paid out of the money, even to the extent of appropriating the whole of it if necessary to the extinguishment of the balance due to it.
The cause being here on appeal from a decree dismissing the bill for want of equity, we have treated the bill as amended in respect to the defect pointed out.When amended as indicated, it will clearly contain
lieversed and remanded.
