Raisin Fertilizer Co. v. Bell , 107 Ala. 261 ( 1894 )

HARALSON, J.

There can be no question as to the rights of the complainant, as a judgment creditor of J. T. Bell, with a return of execution, “no property found,” to reach any interest he had in the property to redeem the mortgages of himself and wife to the bank and to PI. L. Martin. — Bingham v. Vandergraft, 93 Ala., 283; Cramer v. Watson, 73 Ala., 127; Lehman v. Collins, 69 Ala., 127. So a bill in equity will lie .for the enforcement of the lien kept alive by the record of the judgment against him, when there is any obstacle in the way of its enforcement at law, rendering it necessary to resort to equity to give the lien force and effect. — Enslen v. Wheeler, 98 Ala., 205; Wimberly v. Mayberry, 94 Ala., 240.

The facts stated in this bill are sufficient to authorize a court of equity to take jurisdiction to enforce the judgment lien against said J. T. Bell, and to clear away all obstacles to its due enforcement. The complainant has made proper offer in its bill to pay all that remains due and owing on either or both of said mortgages, if anything remains due thereon, in order that the property belonging to said judgment debtor may be sold for the satisfaction of his judgment lien, and to this relief he is entitled. It may be added, that complainant has no right to recover any sum of money that defendant Bell may have paid H. L. Martin over and above what was due on said mortgages. With this, complainant had nothing to do, and a case is not made for a lien, or the enforcement of it, on money that may have been thus paid. Its lien extends to, and is enforceable on the property embraced in said mortgages, which may belong to said J. T. Bell.

The bill alleges, “that in the Fall of 1893, Mrs. Mary J. Bell (who is a party defendant), took up said mortgage to H. L. Martin, by paying the indebtedness of herself and J. T. Beil (another defendant), and had said mortgage from said Martin transferred to her.” According to this allegation, Martin has no interest in this litigation, and is not a necessary or even a proper party. Story Eq. PL, §§ 189, 237-; 3 Brick. Dig., p. 371, § 51; Wilkinson v. May, 69 Ala., 34; Front v. Hoge, 57 Ala., 28.

There was no error in sustaining a demurrer, of said Martin to the bill ; but the demurrer of the other defendants should have been overruled.

The interest of said J. T. Bell and his wife in the property mortgaged, should of course be ascertained,-as it is only on J. T. Bell’s property that complainant has a judgment lien to be enforced.

Reversed and remanded.