Opinion
6 Div. 318.
April 16, 1925.
Appeal from Circuit Court, Winston County; Ernest Lacy, Judge.
S. A. Lynne, of Decatur, for appellant.
The bill avers mere conclusions, and is insufficient. Seals v. Robinson, 75 Ala. 363; McKeagg v. Collehan, 13 Ala. 828; Phœnix Ins. Co. v. Moog, 78 Ala. 301, 56 Am. Rep. 31; Greenwood v. Trigg, Dobbs Co., 154 Ala. 488, 46 So. 227. Consent by appellee to rendition of judgment on the bond constituted a waiver of the right to subrogation. 34 C. J. 130; Watts v. Eufaula Nat. Bank, 76 Ala. 474. Lien against the tax collector was discharged at the end of one year after expiration of his term of office. Code 1923, § 2603.
Curtis, Pennington Pou, of Jasper, for appellee.
The bond of a tax collector creates a lien upon all property of the principal at the time of execution and after-acquired property. Code 1923, § 2603; Randolph v. Billing, 115 Ala. 682, 22 So. 468; Lott v. Mobile, 79 Ala. 69; Baker v. Scheussler, 85 Ala. 543, 5 So. 328. The surety who pays a judgment is subrogated to all the rights of the county. Code 1923, § 9367; Knighton v. Curry, 62 Ala. 404; Singleton v. U.S. F. G. Co., 195 Ala. 506, 70 So. 169; Schuessler v. Dudley, 80 Ala. 547, 2 So. 526, 60 Am. Rep. 124; Callen v. Schuessler, 86 Ala. 530, 5 So. 795; Bragg v. Patterson, 85 Ala. 233, 4 So. 716; Watts v. Eufaula Bank, 76 Ala. 474; 3 Pom. Eq. Jur. § 1419.
The bill of complaint sufficiently alleges every fact necessary to establish a lien in favor of Winston county upon the lands of R. T. Thornton, by reason of his breaches of his official bond. Section 1491, Code of 1907; section 2603, Code 1923. It also sufficiently alleges every fact necessary to establish complainant's right to subrogation to the lien of the county, by reason of his payment of the judgment recovered by the county against Thornton and the several sureties on his bond. Cummings v. May, 110 Ala. 479, 20 So. 307; Randolph v. Brown, 115 Ala. 677, 22 So. 524; Singleton v. U.S. F. G. Co., 195 Ala. 506, 70 So. 169; Watts v. Bank, 76 Ala. 474.
The fact that Thornton and his sureties admitted the fact and amount of his liability, and consented in open court to a judgment against themselves for the ascertained amount, had no effect on the lien of the county, and was in no possible aspect a waiver by the sureties of their right of subrogation. Cummings v. May, 110 Ala. 479, 485, 20 So. 307. A waiver by implication arises only when the surety does some act inconsistent with his right to have the creditors' lien, as by the acceptance of independent security. Watts v. Bank, 76 Ala. 474.
The bill shows that Thornton was adjudged a bankrupt, and that the respondent bank "obtained some kind of a foreclosure or trustee deed from said court, or foreclosed its said mortgage on said lands, and that it holds said lands under said mortgage, or under foreclosure deed, or under a deed received through the bankrupt court." This allegation does not show, by inference or otherwise, that respondent thus acquired a title divested of the paramount lien of the county. If the proceedings in bankruptcy could have had, and did have, such a result that is defensive matter which must be set up by answer or plea.
Section 1491, Code 1907, which declares the lien of official bonds, has been brought forward as section 2603 in the Code of 1923, with the added provision that:
The "lien is discharged at the end of one year after the expiration of the term of office of the principal if no unsatisfied judgment exists against said bond, and no suit is pending thereon."
This limitational provision, however, did not become operative until August 17, 1924, and can have no application to this case.
We think the demurrer to the bill was properly overruled, and the decree in that behalf will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.