102 So. 101 | Ala. | 1924
There can be little or no doubt that the complainant owned an undivided half interest in the barber shop fixtures, as distinguished from the pool room, and that the respondent's mortgage did not include said half interest, and if the sale had been made solely under the mortgage and to satisfy the mortgage indebtedness alone, there could be little plausibility in the respondent's contention. But the proof shows that the mortgage indebtedness was only a portion of what was due McIntosh, and he had a considerable claim for back rent and which carried with it a lien on the complainant's interest in the barber shop fixtures as well as the other property in the building. It is also apparent that in the frequent and constant negotiations between Hill and McIntosh, Hill knew that the claim of McIntosh included the rent, and that the bid to be made at the sale by Hill, whether for himself or as agent for McIntosh, was for all the property subject to the city's lien for license, and included the rent as well as the mortgage debt, and which former was a charge against complainant's interest in the barber shop. Complainant claims to have paid his cotenant or partner a portion of the rent, but there is nothing to indicate that McIntosh had received it or ever released his lien for rent and did not intend the bid to include same. Hill did not protest against the sale and at no time indicated that his interest in the property was not subject to the rent. Indeed, it develops in the testimony that McIntosh was willing to make Hill some slight concession in the resale and rent, because of the burden falling on him and his interest in the property.
In other words, the conclusion is irresistible that in making the bid McIntosh intended to do so upon the idea of closing up the matter and acquiring all the property not only covered by the mortgage but by his landlord's lien, and that Hill knew of this purpose and intent and made no protest or objection to the sale of his interest. Had he objected or indicated that the sale should not include his interest in the property, or that it was not liable for the rent or to the irregularity of the method of enforcing the landlord's lien, it is hardly probable that respondent would have authorized that the bid practically cover the entire indebtedness with a waiver or exclusion of complainant's interest in the property, when it is practically conceded that all of the property was worth less than said indebtedness. We therefore hold that the complainant's conduct was such as to estop him from claiming that his interest in the property was not included in the sale, and that said conduct may have and probably did influence the respondent in fixing the amount to be bid for the property. "He who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to be silent." Harris v. American Co.,
The trial court erred in not dismissing the complainant's bill, and the decree is reversed, and one is here rendered dismissing same.
Reversed and rendered.
SAYRE, GARDNER, and MILLER, JJ., concur.
