82 Ala. 412 | Ala. | 1886
— The defense attempted in, this case entirely misapprehends our rulings.
In Levystein v. Whitman, 59 Ala. 345, there was a mortgage, and part of the' payment claimed was proceeds of cotton covered' by the mortgage, while another part was derived from, cotton not covered by the mortgage. The opinion in that' case' laid down the rule as to the application of the money, derived - from cotton on which the. mortgagee had no ¿lien. As to the cotton covered by the mortgage, and the application-of its proceeds, we said : “If a creditor proposes to divert a payment from the relief of the soui’ce or fund from which it ai'ises, he must show for the diversion the authority of the party to be affected.” In another place it was said : “On them (mortgagees) rests the burden of showing that there was an agreement, express or implied, with the mortgagor, by which ■ it (the proceeds of the mortgage'cotton) would be applied otherwise than to the mortgage debt.”
In Mahan v. Smitherman, 71 Ala. 567, it was simply decided,* that the payee could not apply proceeds of cotton on which he held a lien, to the payment of a non-secured debt, without the consent of the lienor, • who made the payment. It was neither decided, nor intended to be decided; that the lienor could divert the payment from the lien debt, without the consent of the lienee. ■
Johnson v. Thomas, 77 Ala. 367, is not distinguishable from the foregoing. In'that case the question was, whether the mortgagee, xvithout the consent of the mortgagor, could apply the proceeds of mortgaged cotton to the payment of a different debt. We held he could not.
In Aderholt v. Embry, 78 Ala. 185, there was a statutory lien on the same cotton, for the payment of two debts. Wo held that, in such case, the general rule as to the application of payments obtained so far as the two debts were concerned. The law had declared a lien in favor of each of the' claims, and, as between debts thus situated-, the general rule for appropriating payments, first by debtor, next by creditor, etc., we declared was the true rule. We have xxot decided that the proceeds of property, on which there is a mortgage or other lien, can be applied to a debt xxot secured by the mortgage or lien, without the consent of both parties. We hold the converse of that to be the law. Askew v. Steiner, 76 Ala. 218.
Affirmed.