England & Lee v. Reynolds, Devoe & Co. , 38 Ala. 370 ( 1862 )

A. J. WALKER, C. J.

The chancellor■overruled'the demurrer to the compl'ainants’ bill. He considers, in an elaborate opinion, the various points arising upon the demurrer. Without committing ourselves to ail the expressions contained in that opinion, we are fully satisfied with the conclusions attained, and do not think any remarks of ours necessary to vindicate their correctness. We merely cite, in support of the position.that the assignment was not vitiated by the discretion given the trustee as to the terms and mode of sale, the cases of Miller v. Stetson, 32 Ala. 161; S. C., 36 Ala. 642; and Walthall v. Rives, Battle & Co., 34 Ala. 91; and' refer to Burrill on Assignments, 83'0 to 340, for an able review of the authorities upon the question, whether the assent of the creditors was necessary to the maintenance of the assignment.

[2.] An approval of the chancellor’s rulings upon the demurrer, leads to an affirmance.upon every point, except the-one presented by the 10th assignment of errors. We understand the chancellor to decide, that England & Lee can receive no benefit in this case from the mortgage to them by Adolph Reis, and the sale under that mortgage This.is put upon the ground, that England & Lee failed/, on the hearing of the canse, to produce the mortgage, or bring forward proof in reference to the same.

The testimony is silent in reference to the mortgage; and the chancellor’s position is correct, unless the mortgage is to be regarded as sustained by the state of the pleadings, between the complainants, on the one side, and England & Lee on the other. The bill alleges, that England & Lee had, on the-day of-, 1858, sold a certain lot, by virtue of some pretended lien or claim of title, for about five thousand and thirty dollars, and that they claim the money by virtue of their pretended lien or mortgage, and appropriate it to their own use. The bill further alleges, that the amount for which England & Lee sued out an attachment was a part of the debt which they pretended was secured by their pretended mortgage, and for the satisfaction of which they sold the lot under their pretended mortgage, lien, or claim of title ; that they hare no right to both the remedies by sale under the mortgage and by attachment; that the sum for which they sold the lot under the pretended mortgage was more than sufficient, if they have any just claim, to pay it; and that, upon correct accounting, they would be indebted to the complainants on account of the proceeds of the sale. These allegations may fairly be understood to make the somewhat contradictory assertions, that England & Lee had a mortgage or lien, under which they sold the lot; that it was pretended, not real $ that the debts secured thereby were not 'bona fide; that they were discharged by the proceeds of the sale, and that there remained an excess in their hands.

It seems to us clear, that the answer of England, exhibiting a mortgage on the lot, with a power of sale, asserting the bona fides of the debts secured, and of the mortgage, and showing that a balance remained due upon the debts secured, after an appropriation of the proceeds of the sale, is responsive to the averments of the bill which we have noticed, and would be evidence against the complainants. This being the case, under the pleadings, England & Lee must be regarded as having shown a mortgage, older in date than the assignment which the bill sets up, and also bona-fide debts, secured by the mortgage, which were satisfied only .in.part by the sale in pursuance of a power conferred by .the mortgage. We decide, therefore, that the chancellor erred-in treating the fund arising from the mortgage as assets subject to .distribution among the creditors of Reis claiming under the. assignment. . We’ find no other error.

We deem it proper to remark, that no question as to the - registration of .the respective conveyances is raised in this case. If we were to look ..into that subject, it would not., change the result.

Reversed and .remanded..