128 So. 784 | Ala. | 1930
The bill seeks to enforce an alleged lien upon a certain mortgage given to S. J. White and his wife by Eugene Bee and his wife and which said mortgage was transferred by the Whites to one Clark. The complainant, Gibson, recovered a judgment against S. J. White and had the same registered January 3, 1928, and which said registration antedated the mortgage as well as the transfer of same to Clark.
The important question involved is whether or not the complainant by the registration of his judgment against White acquired a lien which could be fastened to or visited upon the said mortgage. Section 7875 of the Code of 1923 provides: "Every judgment or decree, a certificate of which has been filed as provided in the preceding section, shall be a lien in the county where filed, on all the property of the defendant which is subject to levy and sale under execution."
This court has several times held that this lien only applies to and covers property which is subject to levy and sale under an execution. Brock Candy Co. v. Elson,
Our court in the case of Morris Co. v. Barker,
As the complainant had no lien upon the property in question, his bill of complaint was without equity, and the trial court erred in overruling the respondents' demurrer thereto.
The decree of the Circuit Court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.