Bellinger v. Lehman, Durr & Co. , 103 Ala. 385 ( 1893 )

HEAD, J.

In 1883, Moses T. Ray and W. C. Ray were partners in a farming business. In February of that year, Moses T. Ray executed to Lehman, Durr & Co. a mortgage to secure a debt of $2,000, which had the effect to pass to them his interest in-the partnership crops to be grown that year, to be ascertained upon a settlement of the partnership. After the crops had been commenced, to-wit, in March, 1883, Moses T. Ray died, and on April 4th, thereafter, William Bellinger was appointed his administrator. The partnership rights and interests thus devolved on W. C. Ray, as surviving partner, for the purposes of completion of the crops, and liquidation and final settlement. Instead of making formal settlement with W. C. Ray, Bellinger, as administrator, agreed to accept from him, $500 for his intestate’s interest in the crops, and that sum was paid to him by W. C. Ray, the surviving partner, therefor. Lehman, Durr & Co. had other security for said debt, viz., a pledge of certain capital stock of the Merchants and Planters National Bank ; and, on September 22d, 1884, they filed this bill to enforce and foreclose that pledge, as well as their mortgage on the crops. In the progress of the cause, they realized upon the pledge, by sale of the stock, under a decree of the court, leaving only the crops a subject of contest'. Pending the cause, William Bellinger died, and Robert H. Bellinger, the. appellant, was appointed his administrator, and as such, was brought in as a party defendant. By an amendment of the bill, the complainants elected to claim the $500, which the surviving partner had paid William Bellinger for his intestate’s interest in the crops, instead of demanding a formal settlement of the partnership and claiming what might be developed to be due them thereon; and, on final hearing, the chancellor rendered a personal decree in their favor for the same, against Robert H. Bellinger, as administrator of William Bellinger, deceased. That decree is the matter assigned as error. The contention of appellant is, that the sale by William Bellinger to W. C. Ray of his intestate’s interest in the crops, was made subject to the complainant’s mortgage. In other' words, it was a sale of intestate’s equity of redemption only, the price' received not representing the value of intestate’s entire, unencumbered estate or property in the crops. In the consideration of this question, we are concluded by the finding and report of the register, which was' confirmed without exception. That report is as follows: “The register is of opinion and finds and reports that W. C. Ray had one-half interest in such crops and that Moses T. Ray had one-half interest therein; that the valué of such interests in said crops has not been shown by evidence, but that W. C. Ray paid to William Bellinger, the administrator of Moses Ray’s estate, $500, or $550, for M. T. Ray’s interest for 1883, exclusive of the cotton seed and oats- heretofore referred to.” This language leaves no room for doubt that the sale was of the entire interest of Moses Ray, without regard to any encumbrance thereon. The money received by William Bellinger, therefore, constituted proceeds of property upon which complainants held a mortgage, which proceeds they could lawfully elect to claim, in lieu of the property itself. Such an election ratified the disposition made by Bellinger, and was a renunciation by complainants of all right to further pursue the property itself, or the surviving partner. The amount received, then, by William Bellinger, the administrator, on his sale of his intestate’s interest in the crops, became money in his hands which, ex aequo et bono, belonged to complainants, by virtue of their mortgage on the crops.

It is contended also that complainants had an adequate and complete remedy at law. It is true they might have maintained the equitable action for money had and received against William Bellinger, in a court of law ; but that does not take away the right to enforce the equity in a court of chancery, as we held in Westmoreland v. Foster, 60 Ala. 448. Besides, the enforcement of complainant’s mortgage security, in its original form, involved a foreclosure of the mortgage, itself involving a settlement of the partnership; and the corporate stock, held in pledge for the same debt, had to be disposed of. The bill was properly filed for these purposes. Jurisdiction was properly assumed, and it was competent for the court to do complete justice, in the cause, even had it been necessary, in some respects, to grant relief for which legal remedies were adequate.

•It is said the estate of William Bellinger is insolvent. It has not been so declared, and there is no plea of plene administravit by Robert Bellinger.

The decree of the chancellor is affirmed.