Matheson v. Farmers' Bank & Trust Co.

116 So. 906, 217 Ala. 606

Opinion

GARDNER, J.

The authority of Blackmen v. Engram, 214 Ala. 262, 107 So. 741, cited and relied upon by counsel for'petitioners, is not in conflict with the holding of the Court of Appeals in the instant case. This court in the Engram Case was dealing with a mortgage executed by the tenant subsequent to the tenancy, but for security of the purchase price; the mortgage being executed simultaneously with a sale of the property, and in legal effect a retention of title as security for the purchase money. The mortgage title was there held superior to the lien of the landlord, and the discussion in the opinion is referable to the facts as there presented. In the ease presently considered, the mortgage to the claimant bank was executed and duly recorded several months before the rental contract.

We are in accord with the Court of Appeals that the statute (section 8894, Code of 1923) quoted in the opinion of that court was not intended to “violate fundamental rights of property,” and the language of this court in the Engram Case, supra, is not therefore to be construed as indicating to the contrary and restricting superiority of mortgages to those executed as security for the purchase money. The two eases are readily differentiated.

The opinion of the Court of Appeals is cor•reet, and the petition will be denied.

Writ denied.

ANDERSON, C. J., and SAYRE and .BOULDIN, JJ., concur..