Opinion
SC 301.
September 27, 1973.
Appeal from the Russell County Circuit Court, James H. Caldwell, J.
Phillips, Funderburk Faulk, Phenix City, for appellant.
Where a valid foreclosure sale is had by a mortgagee those persons who come within the statute controlling redemption have one (1) year to assert their rights and a failure to assert those rights is a waiver of any future right of redemption. Code of Alabama 1940, Recomp. 1958, Title 7, Section 727; Turberville v. Lyman, 47 Ala. App. 43, 249 So.2d 865; Memorial Shrines, Inc. v. McConnell, 270 Ala. 266, 117 So.2d 684; Ladd v. Parmer, 278 Ala. 435, 178 So.2d 829; Atkinson v. Kirby, 270 Ala. 178, 117 So.2d 392; Dicie v. Morris, 285 Ala. 650, 235 So.2d 796; Butler v. Fayette Seed Farms, Inc., 280 Ala. 482, 195 So.2d 534.
Paul J. Miller, Jr., Phenix City, for appellee W. C. Bradley Co.
Cornett Perdue, Phenix City, for appellee Sunbeam Heating and Insulating Co., Inc.
The creation, enforcement, and priorities of materialmen's and mechanic's liens is governed by prevailing statutes. Empire Home Loans, Inc. v. W. C. Bradley, et al., 286 Ala. 449, 241 So.2d 317; Code of Alabama of 1958, as amended, Title 33, Article 8. Courts of Equity have inherent and statutory jurisdiction to enforce materialmen's liens and to adjust priorities. Code of Alabama of 1958, as amended, Title 33, Sec. 48; Sylvester v. Strickland, 278 Ala. 278, 177 So.2d 905. Materialmen's lien on mortgaged property is not affected by subsequent foreclosure of mortgage where purchase took place with notice and subject to materialmen's rights. Vesuvius Lbr. Co., et al. v. Alabama Fidelity Mortgage and Bond Co., 82 So. 107.
This is the second appeal in this case. We will not restate the facts since they are set out fully in the opinion on prior appeal. There, in Empire Home Loans, Inc. v. W. C. Bradley Co., 286 Ala. 449, 241 So.2d 317 (1970), this Court held, in substance, that where amounts advanced under construction loan mortgages far exceeded the value of the lots in their naked state and removal of the finished houses on the lots would be detrimental to all parties, a materialman's and mechanic's lien created subsequent to the recordation of the construction mortgage would not be given priority. This Court also held that where the materialman's lien attached prior to the recordation of the construction loan mortgage, the lien attached to both the land and the buildings.
On remand, the trial court entered a decree which recognized these priorities as set out in this Court's opinion. The Court ordered the lots involved in this litigation sold to satisfy the liens in accordance with the priority established in the decree.
Empire was dissatisfied with this decree, especially insofar as it ordered a sale of the lots. Empire claims that since it had foreclosed its mortgage prior to the filing of this suit, and since more than one year has expired since the foreclosure sale, the lienholders' only right was to redeem, and their failure to redeem operated as a waiver of any future right of redemption. We find no merit in Empire's contention.
In the original bill, Bradley asked the court to determine the priority of Empire's lien and his lien. Bradley asked the court to order the lots sold to satisfy the liens. On the initial appeal, Empire assigned no error attacking the validity of the court's decree ordering a sale of the lots. The main question on the prior appeal concerned the question of priority. This Court found in Empire's favor in several respects. Implicit in this Court's opinion was the proposition that the lienholders were entitled to priority with respect to the "proceeds". "Proceeds" could not be derived except upon a sale of the lots. Admittedly, this Court did not address the propriety of the lower court's decree ordering a sale. Empire did not question the correctness of the decree in this regard.
Since we find that the trial court has followed the opinion and mandate of this Court on original appeal, the decree appealed from is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and FAULKNER, JJ., concur.