Hooks v. Br. Bank , 15 Ala. 609 ( 1849 )

COLLIER, C. J.

1. No question is raised upon the record, as to the bona fides of the purchase by the claimant or Clanton, of the slaves, embraced by the deed, from Harris to Hooks, which were sold under executions against Harris. But the first inquiry to which our attention is invited, is, whether the proceedings in chancery, set out in the bill of exceptions, tend to establish the legal title of the claimant to the slaves in question ? It will be observed that the plaintiff in execution was no party to these proceedings ; that the bill was filed by the claimant, to injoin Reuben Anderson for selling under a judgment in his favor, the slaves conveyed to the complainant, and which had not been sold under the executions referred to, and for general relief. The cross bill by Anderson alleged that one of the debts professed to be secured by the deed was simulated; insisted that for that.cause, the deed should be declared void in toto, and asked such relief as might be appropriate. Upon the case made .by both bills, it was adjudged that the deed should be inoperative as to the debt which was objected to as merely pretended ; but in respect to the debt, for the payment of which the claimant was a surety, it was held to be entitled to priority over the judgment and execution in favor of Anderson ; the slaves were ordered to be sold, and the proceeds appropriated accordingly.

This decree merely adjusted the priority of the parties to the suit, and established the validity of the deed of Harris to Hooks, so far as it provided for the debt, for which Hooks was a surety. True, that deed proposed to furnish an indemnity to Hooks, against the consequences of his suretyship for a debt due the plaintiff in execution by Harris ; but it did not confer on the plaintiff a benefit, or give to the bank any control over the mortgaged property. It was, then, a security, which the mortgagee held independently of the plaintiff; and the latter cannot, therefore, be said to be in privity with him, so as to make a decree in a cause to which the mortgagee was a party evidence against the bank. The proceeding in chancery not being what is technically called in rein, and the plaintiff not being directly nor indirectly,*a party to it, the decree is not conclusive against the plaintiff as to any point adjudged by it. The Branch Bank at Montgomery v. Hodges, 12 Ala. R. 118; McLelland v. Ridgeway, ib. 482. It is not only not conclusive, but it is not evidence in an independent and disconnected cause against a stranger to it.

2. The assent of the plaintiff, that the register might sell the slaves under the decree on a credit of one and two years, did not make the plaintiff a party to the proceeding. It does not appear that it in any manner interfered, or was even aware of the chancery suit until the final decree was rendered. We must intend then, that the interference of the plaintiff was induced by the claimant, and was intended for his benefit, by enabling him to realize a larger sum from a credit than a cash sale would produce, with the interest added. The acquiescence by the bank, in the sale by the register, might perhaps conclude it as against a purchaser, and prevent the sale under execution of the same property, to pay another debt due the bank by Harris. But it must be remembered that the property now in controversy, was not sold under the decree; it had been levied on, and sold previous to the exhibition of the bill, under writs of fieri facias, against Harris, which operated a lien paramount to the deed. -The assent then of the bank to the credit sale of the register, cannot affect its right to subject to execution, property upon-which the decree did not operate, though it was embraced, by the deed.

3. The .deed by Hooks and Clanton, of May 1844, by which they mortgaged-to Cunningham and others, their sureties for the amount of Harris’s indebtedness to the plaintiff in execution, the slaves embraced )by the deed of Harris to Hooks, does not tend to establish a legal title in the claimant, which cannot be reached by the plaintiff# execution. True it' indicates an assertion of right by the claimant and his co-mortgagors; t|Ut this is nothing more than a written declaration of the recitals of the mortgage, and in itself proves nothing against one who asserts an antagonistic claim. This propotition seems to ús too clear to require the aid of argument to support it.

Neither the proceedings in chancery, the agency of the plaintiff in execution in respect to the property sold by the register, or themortgage of 1844, severally or collectively, show.a title in the claimant inconsistent with the evidence of ownership by the defendant in execution. They do not estop the plaintiff from controverting the claimant’s title; nor are they evidence against the plaintiff in the present case, to show that the right to the slaves had passed from the defendant in execution and vested in the claimant. If the claimant relied upon the deed from Harris to himself, he should have proved its execution by legal testimony, and have shown grima facie, that, it was sustained by a sufficient consideration. The admissions in the record of the suit in chancery are insufficient for that purpose (as we have seen) in the case before us ; and the interference of the. plaintiff at the register’s sale, and the mortgage of 1844, do not tend to establish either of these facts.

True, the act of 1812 declares, that in trials of the right of property, under the statute, the burthen of sustaining the issue should be on the plaintiff in execution; but the effect of evidence adduced by the plaintiff can only be met and overcome by such proof as is admissible according to legal rules. We have considered the question presented'for revision, and have but to add that the judgment of the circuit court is affirmed.

Chilton, J. not sitting.