Lanier v. Driver , 24 Ala. 149 ( 1854 )

PHELAN, J.

Smith filed his bill of interpleader against Lanier, administrator of Thompson, and Driver. The bill sets forth that H. F. Scruggs made two deeds in trust; one to Tartt, trustee, in 1839, to secure sundry creditors, and among the rest Driver, in a note for something over $1,000 ; and the other in 1841, to secure Thompson’s administrators, to whom Lanier succeeded. Both deeds embraced the same property ; but the deed of 1839 some property not embraced in the deed of 1841, in which Smith, the complainant in the bill of inter-pleader, was trustee. Smith, the trustee in the second deed, was about to sell the property to pay the debts secured by it, when, as he alleges, he was notified by the agent of Driver that the property was first liable to pay the debts secured by the deed of 1839, and that Driver would insist upon his right to have it so appropriated. He then further alleges, that, in order to have a sale of the property, an agreement was entered into between himself, as agent of Lanier, and one Houston, as the agent of Driver, that the property should be sold, and that the sum of $1,541 87, the amount of Driver’s claim, should be retained by Smith, to be delivered up to him who should be able to show the best right to it.

All the material allegations of the bill are admitted by both Lanier and Driver, with this exception on the part- of Driver : he denies any such agreement, and insists in his answer that the amount of his claim was to be retained for him by Smith absolutely, and not subject to any future contestation as to his right to the money.

The proof on this point abundantly sustains the allegation of the bill. The Chancellor decreed, that Smith should pay the money retained by him into court, and that ■ the parties should proceed to contest between themselves the right to it. ^ After the publication of the testimony, but by consent, and without prejudice, and the argument of the cause, Driver filed a petition to amend his answer, stating that he had denied the .agreement as alleged upon information only, and that he had acted either under incorrect information, or a misapprehension of his own, and was now'satisfied that the agreement, as to the terms on which the sale was to proceed, and the amount of his claim retained, were truly stated in the bill of Smith. The truth of the facts stated in this petition is strongly supported by the affidavits ef his solicitors, and especially by the one who drew his answer.. The leave to amend, though strenuously opposed, was allowed by the Chancellor.

We think this was a matter purely within the sound discretion of the Chancellor, and therefore not revisable on appeal. But, if it were essential to go further, we should be inclined to think that the discretion was properly exercised. The answers to a bill of interpleader, when the complainant is discharged, are looked to for the purpose of ascertaining the title respectively set up by the defendants to the bill, now become contestants to the fund delivered into court. It is questionable whether the ordinary rules wnich govern answers, and amending answers, properly apply in such a case. The answers become rather the bills of complaint of the respective parties. — 3 Dan. Ch. Pr. 1765 ; 1 Smith Ch. Pr. 472; 2 Story’s Eq. § 822.

Now, what is the title respectively set up to this fund by Lanier and Driver 1 Lanier relies on the deed of 1841; Driver, on the deed of 1839. It is the deed in trust of 1839, that gives Driver the right to this money, as against Lanier, if he is entitled at all, and not the allegation which he makes, denying the agreement set out by Smith, and averring that the money was to be paid to him absolutely, and without contestation. ’ If that deed be good, his answer makes a caso which would entitle him to a decree for the money, whether the allegation about the agreement to submit to a contestation was true or false. And if his deed be not good, and the deed in favor of Lanier be good, Lanier, in like manner, would bo entitled to the money, irrespective of the nature of that agreement, or the truth or falsehood of Driver’s allegation in respect to it.

This leads us to consider the question concerning the validity of the deed of 1839, and the right of Driver to be paid out of the proceeds of the sale of the property embraced in it.

We can find nothing fraudulent on the face of that deed. Many cases in our reports sustain every material feature in it. —See authorities cited in brief of defendant in error ; also Rankin v. Lodor, 21 Ala. 380.

Neither did it require the actual assent of Driver to make it operative in his favor. It is a deed of that character in which the assent of the beneficiaries will be presumed, because it is clearly for their benefit. — See same authorities, and 21 Ala. supra.

The sale of the slave Wash, by Scruggs, the grantor, it is shown, was made by him without the knowledge or consent of Driver, who lived at a distance; and therefore, whether the proceeds of that sale went in payment of other debts secured by the deed, and was made with the consent of certain of the beneficiaries, and so lawfully made, as is insisted, need not be considered, so liar as he is concerned. There is nothing shown, which would go to charge him with so much of the trust fund wasted or converted, with his connivance or through his neglect. The law day in the second deed, it may be observed, expired in 1842; and if the beneficiaries in the first deed were tardy in enforcing their trust, those in the second had it in their power, after that time, to compel them. This is an answer to the objection that Driver was negligent in closing his trust.

Scruggs conveys an undivided interest, which was one fourth part, in Mary and her children. The proof shows that, after the date of the deed, and before the sale in 1846, H. F.. Scruggs and his brothers had a division of the slaves, by which Mary fell to H. F. Scruggs as his share, and she was sold. If this division was fair and equal, and such is the proof, the demands were satisfied by the sale of Scruggs’ slave, and the beneficiaries would have no just claim upon Lucinda.

These observations, it is believed, cover all the assignments of error which have been insisted on in the argument; and it will he seen that we find no error in the decree of the Chancellor.

Let the decree below be affirmed, at the costs of the plaintiff in error.