Carroll v. Kelly , 111 Ala. 661 ( 1895 )

HEAD, J.

In equity, the agreement between appellant, Carroll, and appellee, Sarah E. Kelly, (complainant below), of July 27, 1887, created in favor of appellee, a charge or lien upon the personal property, or its proceeds, to which said Carroll was or might be entitled, by and under the will- of J. T. Perry and the’ codicil thereto attached ; and it was the duty of Richardson, the executor of Perry, being.notified of the agreement, to pay to said Kelly any money which might accrue in his hands, in the regular administration of his trust, which, but for the agreement, would have been properly payable by him to Carroll, until-the amount of Carroll’s indebtedness' evidenced by the agreement should be satisfied. — M. & C. R. R. Co. v. Talman, 15 Ala. 472; Donald v. Hewitt, 33 Ala. 534; Hall v. M. & M. R’y. Co., 58 Ala. 10; Newlin v. McAfee, 64 Ala. 357; Evington v. Smith, 66 Ala. 398; Butts v. Broughton, 72 Ala. 294; Curry v. Shelby, 90 Ala. 277; Christmas v. Russell, 14 Wall. 84; Trist v. Child, 21 Wall. 447; 3 Pom. Eq., §§ 1235, 1237, 1280; Ex parte Wells, 1 Ves. 162; Jackson v. Green, 4 Johns. 186; Smith v. Patton, 12 W. Va. 541; Smith Co. v. McGuinness, 14 R. I. 59; Stewart v. Hutchings, 6 Hill 143; Jackson v. Carswell, 34 Ga. 279; Lynch v. Utica Ins. Co., 18 Wend. 236.

When this contract was formerly before us, in Kelly v. Richardson, Extr., 100 Ala. 584, we did not determine, as counsel now suppose, that the contract did not create such a lien. We expressl}r recognized that the agreement was efficacious, by holding that it authorized the executor to pay the secured indebtedness, from any moneys in his hands going to Carroll. This resulted, not from a mere license or power which the executor might or might not exercise, at his pleasure, but from the agreement between Mrs. Kelly and Carroll, of which he was notified. Indeed, there was, in the case, no formal request or license of Carroll to the executor.' to pay the money; and if the agreement created no enforceable duty or obligation on his part, to pay it, he had no authority whatever in the premises ; and in case of payment, he could not have protected himself against the. demands of Carroll for an accounting for the funds, by any mere license authorizing him to make the payment, because, as we have said, no such license was given. Apart from the legal implication arising out of the binding force of the agreement, he was never requested by Carroll to pay Mrs. Kelly anything. The only other construction we gave the agreement, in the case swpra, was that it conferred upon the executor no duty, obligation, or authority “to convert the property, personal or real, specifically bequeathed or devised to Carroll, into money for the purpose of paying the latter’s contract debt to Mrs. Kelly, or into any property so bequeathed or devised to Mrs. Kelly in specie.” Our affirmance of the decretal order of the chancellor, in that case, ordering the real estate devised by the will of Perry to certain infant devisees to be delivered to the guardians of such infants, can have no possible influence here.

The case then is simply this : Mrs. Kelly, the complainant, has a lien or equitable mortgage upon the personal property, money, and effects derived by Carroll through the will of Peri’y, in the possession of Richardson, tlífe executQr of Perry. Mrs. Kelly filed her bill, with all necessary averments, to enforce this lien. No complaint is made of any misapplication of assets by the executor, and no relief is sought against him, except as to the property or money going to Carroll, yet in, his possession. He is necessarily made a party because lie is holder (so far as the facts alleged show) of the legal title to, and has possession of, the personalty sought to be charged. The bill is in no sense multifarious. We see nothing in the bill to show that the executor had any property in, or control of, the real estate devised to Carroll, or that the agreement creating the lien in favor of Mrs. Kelly, had any reference to such real estate. By law he could have no interest in or control of it, except in the assertion of his statutory privilege to take possession and administer it for the benefit of creditors; and it does not appear that he had, even, asserted that right. Upon the facts disclosed by the bill, we must hold that the lien did not extend to the real estate, and that the same is enforceable in this case only against the money and personalty going to Carroll, in the hands of the executor.

We presume it is not seriously contended that a lien-holder will not be permitted to enforce his security in equity , upon the idea that he has an adequate remedy at law by the pursuit of his ordinary personal remedies against the debtor.

Affirmed.