70 So. 169 | Ala. | 1915
The complainant, surety upon the bond of one A. E. Singleton, formerly judge'of probate of Bullock county, Alabama, files this bill against said Singleton and others hereinafter referred to, seeking to be subrogated to the lien of the county of Bullock upon an undivided one-half interest of the said Singleton in certain real estate described in the bill and alleged to have been owned by the said Singleton at the time of the execution of his official bond. There were made parties to the bill J. H. Rainer, Jr., S. P. Rainer, Hugh Foster, A. E. Singleton, and the British-American Mortgage Company. There appears to demurrer or answer of respondent Singleton. The other respondents each separately filed demurrers to the bill, which were by the court below overruled, and from which decree this appeal is prosecuted. Upon the submission here there was a severance in the assignments of error and each of said respondents assigned errors separately, each appearing by separate counsel. In this record, however, we find briefs only for appellants J. H. Rainer, Jr., and S. P. Rainer. There being no insistence therefore upon the assignments of error of the other appellants, under our uniform practice these are to be considered as waived, and need no further consideration here. Our attention therefore is to be directed to the assignments of error of appellants J. H. Rainer, Jr., and S. P. Rainer.
In the fifth paragraph of the bill a large tract of land situated in Bullock county is described as having been owned by said A. E. Singleton prior to the execution of said bond, and also a small tract of land situated in Macon county, Ala. It is further shown in said paragraph that prior to the execution of said bond, to
Appellant S. P. Rainer attacked the sufficiency of the bill by several assignments of demurrer, only a few of which appear to be insisted upon by his- counsel in brief on this submission.
Section 1491 of the Code of 1907 reads as follows: “Bond a Lien. — The bond of the judge of the probate court, of the county clerk, of the sheriff, of the clerk of the city or circuit court, of the tax assessor, of the tax collector, and of the county treasurer, is a lien upon the property of the principal from the date of its execution.”
It has been held in this state that this lien is enforceable only in a court of equity (Jackson County v. Derrick, 117 Ala. 348, 23 South. 193), and that purchasers from the probate judge “are charged by law with notice of the lien, and can acquire no right or interest which is not subordinate to it.” — Randolph v. Brown, 115 Ala. 677, 22 South. 524.
In Schuessler v. Dudley, 80 Ala. 547, 2 South. 526, 60 Am. Rep. 124, is the following: “It has been settled by this court that, where the surety of a tax collector makes good the default of his principal, even before judgment rendered for such default, he is entitled to be subrogated, on equitable principles, to the rights of the state or county, and to have the lien of the bond created by this statute in favor of the state or county enforced for his own indemnity against the principal, the cosureties, and the purchasers from them, who have notice of the existence of such lien.”
The case of Sloss Steel & Iron Co. v. Maryland Casualty Co., 167 Ala. 557, 52 South. 751, is an authority directly in point sustaining the averments of the bill in this respect as sufficient.
It is to be noted that the bill shows that said appellant purchased from respondent Singleton the undivided one-half interest in the real estate described in the bill (the bona fides of which purchase is not questioned) some time prior to the execution of said bond and prior to his election as judge of probate of Bullock county. The bill shows that the interest of said J. H. Rainer, Jr., is. not sought here to be affected or in any manner disturbed, but it appears to be recognized that the only interest which could be affected by a decree in this cause would be the remaining undivided one-half interest of said Singleton, which he owned at the time of the execution of said bond, and which was subsequent to the execution of said bond, conveyed to appellant S. P. Rainer. That the interest, of said J. H.'Rainer, Jr., cannot be in any manner affected or disturbed under the averments of the bill by any decree rendered in this cause is recognized fully by the learnéd chancellor, as shown in his opinion which appears in this record.
It has been held in this court that the statute hereinabove referred to has no retroactive effect and exerts no influence upon independent transactions occurring prior to the execution of the bond. — Randolph v. Billing, 115 Ala. 682, 22 South. 468.
In Jones v. Caldwell, 116 Ala. 364, 22 South. 456, is the following quotation: “It is only persons who have a right or interest, legal or equitable, in the subject-matter of the controversy which may be affected by decree who can be made parties to a suit in equity. Persons as to whom no decree can be rendered on a hearing ought not to be made parties.”
The same quotation is also found in Keith v. McCord, 140 Ala. 402, 37 South. 267. To the same effect is the following language taken from the case of Freeman v. Stewart, 119 Ala. 158, 24
See, also, Bolling v. Pace, 99 Ala. 607, 12 South. 796; Espalla v. Touart, 96 Ala. 137, 11 South. 219; Sim’s Chancery Practice, § 141.
The conclusion therefore follows that this assignment of demurrer of said appellant J. H. Rainer, Jr., was, in our opinion, well taken, and should have been sustained.
The decree of the chancellor in overruling the demurrer of appellant J. H. Rainer, Jr., will be reversed as to him, and affirmed as to the other appellants.
Affirmed in part, and in part reversed and remanded.