Wilkerson v. Sellers & Orum Co.

49 So. 874, 161 Ala. 529, 1909 Ala. LEXIS 176

• Court: Supreme Court of Alabama
• Decided: May 24, 1909
• Status: Published

Opinion

ANDERSON, J.

The bill in this case seems to be one to quiet and determine the title of the respective parties to a certain 40 acres of land and to qualify a confirmation of a previous report of sale, so as to exclude said 40 acres therefrom. The respondent had a judgment lien upon the land, or upon Clayton’s equity of redemption to the land, in case the mortgage held by Slaughter had not been satisfied of record, and the complainant having acquired no deed to the land in question from Clayton, prior to the accrual of respondent’s lien, a title subsequently acquired would be subordinate to the one acquired by the respondent under the purchase at the chancery sale, and under the present bill the complainant was not entitled to relief, and the chancellor properly dismissed same.

As to whether or not the mortgage held by Slaughter is superior to respondent’s title we need not decide, as the complainant shows neither a conveyance from Slaughter nor a transfer of the mortgage, and is in no position in the present case to invoke the mortgage in support of his own or against the respondent’s title. Nor can we decide upon complainant’s rights to a subrogation pro tanto under the mortgage held by Slaughter to the extent of the payments made by him to said Slaughter, for the reason that Slaughter is not a party, even if such relief could be had under the present bill, which we need not decide; and, as the chancellor dismissed the bill without prejudice, the decree is in all respects affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.