Rea v. Keller, 112 So. 211

Rea v. Keller

112 So. 211 | Ala. | 1927

Lead Opinion

This case involved the trial of the right of property, and there was verdict for the claimant which was set aside by the court upon motion of the plaintiff, and this appeal is from the judgment of the court granting said motion.

The plaintiff had a judgment lien against the defendant, Oliver, but which was subject to a prior mortgage on the mules levied upon and which had been given by the defendant to Lunsford, but the Lunsford mortgage was paid by the defendant and surrendered to him (the said defendant). There was no transfer or assignment of said mortgage to the claimant, Rea, or any one else. The defendant gave Rea, the claimant, a mortgage on the mules, but subsequent to the accrual of the plaintiff's judgment lien. Therefore the plaintiff had the superior lien, and was entitled to the affirmative charge, unless the claimant had the right to avail himself of the Lunsford lien, claiming the right to a conventional subrogation upon the theory that he advanced the money to the defendant for the purpose of enabling him to pay the Lunsford mortgage. Whether the claimant was or was not entitled to a subrogation to the rights of Lunsford we need not decide, for, if he were, such a right could only be established and enforced in a court of equity and by appropriate pleading and process as applicable to equity pleading and practice. Subrogation is an equitable doctrine, enforceable alone in a court of equity. It is not recognized or applied by courts of law except as provided by express statute. American Bonding Co. v. Fourth National Bank,206 Ala. 639, 91 So. 480, and cases cited. It is true that upon the trial of the right of property an equitable title can be shown, but that means an existing one and not one which can only be established and enforced in a court of equity. The trial court erred in admitting the claimant's mortgage in evidence over the plaintiff's objection (Hammond v. White,214 Ala. 431, 108 So. 347), and in not giving the general charge for the plaintiff, and properly granted the new trial, and the judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.

On Rehearing.

Addendum

Our attention is called to the case of American Bank v. Turner, 16 Ala. App. 602, 80 So. 176. This case seems not to have been brought to our attention on original consideration, and, being a decision of the Court of Appeals, does not appear to have been presented to this court for review by certiorari. It is sufficient to say that said case is not in accord with the present holding or the case of American Bonding Co. v. Fourth National Bank, 206 Ala. 639, 91 So. 480, and the authorities there cited. Neither does the opinion accurately state section 6039 of the Code of 1907. It says: "Under our statutes, any person holding a claim, either legal or equitable, * * * may institute a claim suit," etc. The statute says the claim may be instituted by a party who claims to own the title, legal or equitable, or a lien paramount, meaning, of course, an existing title or lien and not one which can only be established by proceedings in a court of equity.

Nor does the doctrine that when a statute had been readopted without change, and which had previously received a well-known interpretation by this court, apply to the decisions of an inferior or intermediate court.

The rehearing is denied.

SOMERVILLE, THOMAS, and BROWN, JJ., concur. *674