Opinion
6 Div. 668.
April 22, 1926.
Appeal from Circuit Court, Jefferson County; W. M. Walker, Judge.
Matthews Morrow, of Birmingham, for appellant.
In a bill to redeem, a sufficient reason must be averred for failure to make tender of the amount necessary. Wootten v. Vaughn, 202 Ala. 684, 81 So. 662. When, knowing his rights, a person takes no step to enforce them until other equities have intervened, the delay becomes inequitable and operates as an estoppel. 10 R. C. L. "Equity," § 143. If fraud is relied upon to relieve against a judgment, specific facts constituting the fraud must be set forth. 34 C. J. "Judgment," § 772.
Nesbit Sadler, of Birmingham, for appellee.
All claimants to the fund in question must be upon the same footing. Code 1923, § 8854; McDonald v. Stern, 142 Ala. 506, 38 So. 643; Hagan v. Riddle Co., 209 Ala. 606, 96 So. 863. The bill has equity. Enterprise Co. v. First Nat. Bank, 181 Ala. 388, 1 So. 930; Lapenta v. Lettieri, 72 Conn. 377, 44 A. 730, 77 Am. St. Rep. 315; Newhall v. Kastens, 70 Ill. 156; Illingworth v. Rowe, 52 N.J. Eq. 360, 28 A. 456; 2 Story, Eq. Jur. (14th Ed.) § 1140; 4 Pomeroy (14th Ed.) § 1481.
The appellee, as owner of a house and lot, filed this bill of interpleader or in the nature of an interpleader against numerous claimants of a mechanic's lien and none of whom being the original contractor could have preference or priority under the terms of section 8854 of the Code of 1923. The bill admits a balance due, and offers to bring it into court, and prays for an adjustment between the different claimants thereto and for a discharge. The equity of such a bill is well recognized by the leading text-writers as well as by many decisions of the appellate courts. 4 Pomeroy (3d Ed.) § 1320, p. 2634; Story's Equity (14th Ed.) vol. 2, § 1140; McDonald Co. v. Stern, 142 Ala. 506, 38 So. 643; Hagan v. Riddle, 209 Ala. 606, 96 So. 863; Lapenta v. Lettieri, 72 Conn. 377, 44 A. 730, 77 Am. St. Rep. 315; Newhall v. Kastens, 70 Ill. 156; and Illingworth v. Rowe, 52 N.J. Eq. 360, 28 A. 456.
The bill is in no sense one to redeem, and the complainant did not have to tender the money into court, as a court of equity can compel the deposit of the fund as a condition precedent to the relief sought.
We do not think that the procurement of the judgment by Baldwin, under the circumstances outlined in the bill of complaint, could operate to give him a preference over other claimants of the same class in violation of section 8854 of the Code, and it seems that the complainant, in a bill in the nature of an interpleader, has a right to seek affirmative relief. That is, not only may the court of equity settle the matter between the rival claimants, but cancel all liens or incumbrances against him arising out of the transaction. Illingworth v. Rowe, supra.
Nor does this render the bill multifarious. Section 6526 of the Code of 1923.
The demurrer to the bill of complaint as amended was properly overruled, and the decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.