Turrentine v. Koopman & Gerdes

124 Ala. 211 | Ala. | 1899

SHARPE, J.

— The complainants as judgment credi- tors of the defendant W. E. Turrentine, seek by this bill to subject to the satisfaction of their judgment an equity of redemption owned by their debtor in lands which he had mortgaged to the defendant Bradley, and upon which it is alleged there remains due only a small balance. To that end the bill prays for a sale of the land and for the application of the proceeds to the discharge of the mortgage and afterwards to their judgment. It is not alleged that any attempt has been made by execution or otherwise to collect the judgment or that legal remedies are not available.

To uphold the equity of the bill, it appears from the complainant’s brief that they rely on sub-division 3 of section 638 of the Code,. where in the enumeration of certain powers of the chancery courts it is declared that their jurisdiction extends “to subject an equitable title or claim to real estate to the payment of debts.”

The contention that the broad language of this provision confers on creditors the right to resort to chancery whenever they elect to pursue equitable interests of their debtors, is unsupported by authority. On the contrary it has been repeatedly held that the exhaustion of legal remedy, usually by the issuance of execution and its- return unsatisfied, or only partially unsatisfied is necessarjr to enable the creditor to invoke the aid of chancery. — Mixon v. Dunklin, 48 Ala. 456; Brown v. Bates, 10 Ala. 432; Thomason v. Scales, 12 Ala. 309; Roper v. McCook, 7 Ala. 318; Nix v. Winter, 35 Ala. 309 ; Carter v. Coleman, 82 Ala. 177; Code, § 814. The equitable remedy in cases of fraudulent transfer by a debtor of his property has been extended by the statute (Code, § 818) to creditors at large; but the rule is unchanged where there is no fraud involved. The declaratory provision referred to was doubtless intended to settle the question which appears to have been originally in doubt in England and in some courts of this country, as to whether equity could aid a creditor in the collection of a judgment at law, by subjecting equitable assets where the legal remedy was unavailing for want of legal assets. The statute declares the power in general terms, but contemplates its exercise conformably to the usual principle which denies relief in equity when there is adequate remedy at law. The equity of redemption which exists before foreclosure of a mortgage is subject to execution (Code, § 189) and the purchaser is vested with the right to redeem. This bill fails to show the existence of any obstacle to the collection by execution of the judgments either from the equity of redemption, or from other property of the debtor. The case of Mixon v. Dunklin, supra, is strictly analogous to this' and is conclusive authority against the maintenance of the bill in its present form.

The bill has no separate equity to compel the foreclosure of Bradley’s mortgage. Even if complainants had acquired a lien by their judgment which is not shown, they could not force the foreclosure. The case of Davis v. Clark, 65 Ala. 617, cited for complainants as showing such right in a junior incumbrancer has in effect been overruled. — Ware v. Hamilton Brotan Shoe Co., 92 Ala. 145; Ware v. Seasongood, Ib. 152; Kelly v. Longshore, 78 Ala. 203.

Tlie decree overruling tlie demurrers will be reversed and a decree here rendered sustaining them and allowing thirty days Avithin Avhich the bill may be amended.

Keversed and rendered.