Magnolia Land Co. v. Malone Investment Co.

SAYBE, J. The Malone Investment Company, averring that its assignor, W. N. Malone & Co., had done work and labor and furnished materials for the repair and improvement of two certain dwelling houses situated upon separate lots in the city of Birmingham, the property of Mrs. Jordan M. Greene, said repairs and improvements, Consisting in painting and papering said houses, putting in plumbing, replacing windows, renovating floors, and such other work and materials as were necessary to beautify and improve said houses -and make the same suitable for occupancy, filed this bill against Mrs. Greene to enforce affeged separate liens Under the statute made for the benefit of mechanics and materialmen. Code, § 4754 et seq. This combination in one suit of liens on separate properties is not questioned, and is made apparently in virtue of the local act of March 4,1901 (Terry’s Local Laws, p. 581). It was averred that the Mortgage Bond Company of New York and the Magnolia Land Company, respectively, held first and second mortgages on the lots at the time of the re: pairs and improvements in suit, and that, after complainant’s demand had accrued and before the filing of complainant’s statement for a lien, the Magnolia Land Company foreclosed its second mortgage, became the purchaser at said sale, and is now exercising ownership over the lots and the improvements thereon. It is averred that complainant’s work and labor was done and materials furnished with the knowledge of the Magnolia Land Company, but there is no averment of facts going to show that the company had in any way waived, surrendered, or otherwise prejudiced the priority which now, by demurrer to the amended bill, it claims as mortgagee. Its. demurrer being overruled, the Magnolia Land Company has appealed. Parties in their briefs discuss the case of Wimberly v. Mayberry, 94 Ala. 240, 10 South. 157, 14 L. R. A. 305, and, as was the case in Jefferson County Savings Bank v. Ben F. Barbour P. & E. Co., 191 Ala. 238, 68 South. 43, to which the briefs refer, the court is asked to overrule that case (Wimberly v. Mayberry) on the point of difference among the then members of the court, or to hold that the change in the statute, noted in Jefferson County Savings Bank v. Ben F. Barbour Co., had effect, by legislative authority, to establish the minority opinion as the law of such cases. But again it is not necessary to decide that precise question. [1, 2] The specific prayer of the amended bill appears to have been intended to accommodate itself, in the alternative, to either of various views as to remedy expressed in the prevailing opinion in Wimberly v. May-berry, 'and besides such relief-as may be warranted by equity and the. facts is prayed generally. The relief to be awarded in any case is determined by the facts alleged in the bill; and, under the general prayer the complainant may, in the ordinary case, have the relief authorized by the facts averred, although he may be mistaken in the special relief prayed. Rosenau v. Powell, 173 Ala. 123, 55 South. 789. It does not appear that in Wimberly v. Mayberry the judges differed with respect to this proposition; the mortgagee who purchases -at his own foreclosure sale does not thereby impair or change the equitable rights of the subsequent incumbrancer under the statute made for mechanics and materialmen. They appear to have been in agreement to this extent: The lien of the mechanic or materialman in a case of this character is upon the whole property, but subordinate to the mortgage as to, the property covered by the mortgage at and before the accrual of the lien. The difference between the judges related to the remedy to be afforded the mechanic or materialman and its practical effect upon the rights of the mortgagee in a case in which -the lienor sought to foreclose his lien, in advance of a foreclosure of the mortgage. The effect of the majority, opinion, as we read it, was to hold that in such a case, where repairs are so inseparably blended with improvements covered by a prior mortgage that they cannot be removed without mutilating the property and impairing the security of the mortgage, the mechanic or materialman may, by his bill, require a sale, thus in effect precipitating a foreclosure of the mortgage, and pay himself out of the proceeds, not necessarily indeed the full price of the work *158 done or the materials furnished, but to the extent of the increased value of the property. Chief Justice Stone, and with him Judge Clopton, framing his statement to cover ail cases, whether or not the mortgage debt has fallen due or been foreclosed, held that the mechanic’s or materialman’s only recourse or remedy in such case is to redeem from the mortgagee by. paying off the older incumbrance and then enforcing the collective liens for their benefit; or to enforce his claimi against the equity of redemption; or to await a foreclosure of the mortgage, and then claim the surplus, should anything be left after payment of the mortgagee’s debt. Speaking for himself, the writer is still unable clearly to see how the remedy approved in Wimberly v. Mayberry can be administered in a case such as that was without impairing the contract rights of the prior mortgagee. But that is not this case. Appellant’s debt is due; its mortgage has been foreclosed, though that fact-is not conceived to be of importance. As against appellant, complainant, a subsequent incumbrancer, has the same substantive rights it had before, and the practical difficulty about the remedy has disappeared — that is, the lien of the complainant may be foreclosed subject to the lien of the mortgage — the property may be exposed for sale under the decree of the court and the proceeds applied (after costs), first, in satisfaction of the mortgage debt, then, in satisfaction of complainant’s lien. The demurrer was directed against the prayer for relief, rather than to the case averred, and, in any event, was properly overruled. Affirmed. ANDERSON, O. J., and McCLELLAN and GARDNER, JJ., concur.