Russell v. Thornton , 216 Ala. 60 ( 1927 )

The bill in this cause was filed by the appellant seeking the enforcement of his lien as landlord on certain property located in his building, rented by him to E. W. and Laura McDonald, who were the owners of the property in said building, and upon which enforcement of the lien is sought. The bill shows that, while the lien was in existence and a considerable amount of the rent past due, said tenants executed a mortgage on said property, the mortgagee having notice of said landlord's lien, and that the mortgagee is proceeding to foreclose said mortgage, which is subordinate to complainant's lien for rent, and that such sale will tend to the destruction of the landlord's lien. The mortgagee is made a party to the suit together with the tenants. The bill seeks to have complainant's lien as landlord enforced and held superior to the mortgagee's title, and temporary injunction is prayed against the foreclosure of the mortgage pending the determination of the cause.

Temporary injunction was issued; the defendants' motion to dissolve the temporary injunction for a want of equity in the bill was sustained; and complainant prosecutes the appeal from such decree.

The argument in support of the ruling of the trial court is rested upon the insistence that, so far as appears from the bill, complainant's remedy by attachment in a court of law is adequate, and that a court of equity was therefore without jurisdiction. The case of Westmoreland v. Foster, 60 Ala. 448, has been construed as supportive of the equity jurisdiction for the enforcement of the landlord's lien, without regard to the attachment remedy at law. Greil Bros. Co. v. City of Montgomery, 182 Ala. 291, 62 So. 692, Ann. Cas. 1915D, 738; Carmen v. Ala. Nat. Bank, 101 Ala. 191, 13 So. 581; Leader v. Romano, 208 Ala. 635, 95 So. 7.

In Coffey v. Hunt, 75 Ala. 236, the language of the court, here pertinent, in the Westmoreland Case, supra, was declared unsound dictum. Any attempted reconciliation of the authorities would, however, prove of no avail at this time, as very clearly such a lien is enforceable in equity under the plain provisions of section 8935, Code of 1923. Hood v. Martin, 205 Ala. 333,87 So. 529; Mathis v. Holman, 204 Ala. 373, 85 So. 710; Wise v. State, 208 Ala. 58, 93 So. 886. The above-mentioned section appears in the report of the case.

In Mathis v. Holman, supra, section 4829, Code of 1907 (section 8935, supra), was construed and held applicable to the enforcement in equity of a mechanic's lien, and the view that such section was intended merely as declaratory of pre-existing law and practice, and not as creating in courts of equity a new jurisdiction, was rejected as unsound, for, as said by the court, "Its language is clear, simple, and direct, and its purpose unmistakable." The opinion concluded, "Moreover, this court has several times construed it, without question apparently, as giving to lien claimants a concurrent remedy in equity." The section there construed is readopted as section 8935, Code of 1923, without change, and with such construction placed thereon, and becomes a part thereof.

In the recent case of Walls v. Skelton, 110 So. 813,¹ the jurisdiction of the equity court seems to have been considered as established and no longer to be questioned.

In view therefore of the express statutory provision as so construed, very clearly, complainant's bill had equity for the enforcement of the landlord's lien for rent, and it was proper that those claiming other incumbrance upon the property be brought in and their rights litigated and the superiority of the claims of the parties be determined. The temporary injunction was merely incidental and properly issued that there may be no change in the status of the parties pending the suit. Cooper v. Cooper, 201 Ala. 475, 78 So. 381. The equity court, having acquired jurisdiction of the subject-matter, will employ its powers to adjust the equities of the parties growing out of this relationship to the property. Hicks v. Meadows, 193 Ala. 246,69 So. 432.

It results, therefore, that the decree dissolving the injunction for a want of equity in the bill was erroneous. It will be here reversed and the cause remanded.

Reversed and remanded.

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

¹ 215 Ala. 357.