Folmar v. Lehman-Durr Co. , 147 Ala. 472 ( 1906 )

ANDERSON, J.

The transfer of the debt passes to the transferee the right of the transferror in such security or property pledged. — Code 1896, § 947; Randolph on Commercial Paper, §§ 731, 1675; Duval v. McLoskey, 1 Ala. 734; Hatch v. White, Fed. Cas. No. 6,209.

Not only did the laAv give the respondent Felix Fol-mar the $7,500 note held as collateral upon the assignment to him of the notes held by the complainant Beall & Coston, but the undisputed evidence is that it Avas expressly agreed that, AAdien the .notes which this bill seeks to enforce were executed, it was expressly understood that the complainants should not only assign to Felix Folmar the notes against Beall & Coston, but all collateral held by them to secure the indebtedness . of said firm, for the. benefit of George A. Folmar. That being-true, a withholding of said collateral note of $7,500 deprived the assignee of the benefit of a collateral to which he was entitled, and the complainant, having failed to transfer the said collateral note of- $7,500, is required to exhaust the same before seeking payment from Geo. A. Folmar of so much of the Beall & Coston debt as may be included in the indebtedness. If said collateral is sufficient to discharge the debt of Beall & Coston assumed by Geo. A. Folmar, then the complainant cannot come upon Folmar for same; but, if insufficient, then they Avould be entitled to a decree for what the collateral would-lack of paying the debt, giving the complainant the benefit of the 1350 already realized by the assignee on the collaterals that Avere assigned.

It is needless to discuss whether or not the complainant, under a subsequent agreement-with Beall, had the right to hold the firm’s collateral for the individual debt of Beall, as the complainant’s OA\rn evidence shows that, if such an agreement Avas made, it Avas secondary to the purpose for Avhich the original note Avas hypothecated. Roman admits that the note was originally left with* them to secure the indebtedness of the firm, and that Beall subsequently agreed that it should be held to secure his own debt, after the firm debt Avas paid. The fact cannot be doubted that when George A. Folmar gave the complainant his notes assuming the debt of Beall & Coston, and the firm notes Avere transferred to Felix Folmar, this |7,500 was at that time hejd primarily as a collateral to secure the notes so assigned. Nor can there be but little doubt that the complainant at the time of the transaction- claimed to hold it exclusively as a collateral to secure the individual debt of Beall. George A. Folma-r testified that the transaction was with Wilkerson, the attorney of complainant, and introduced a Avriting executed at the time, reciting, “This note is held by us as security for an indebtedness due by J. W. Beall,” referring to the note of'17,500.

This case will therefore be reversed, in order that the chancery court may require the complainant to give the respondent Geo. A. Folmar the benefit of said collateral by requiring it to exhaust the f7,500 before collecting from- him any part of the debt of Beall & Coston that is included in the amount claimed under the original bill. It appears that the notes also include the individual indebtedness of George A. Folmar, all of Avhich has been paid except. $382.89, and we affirm tlie ruling of the chancellor upon the report of the register as to the credits claimed by George A. Folmar. The complainant being an existing creditor of George A. Folmar the grant-, or, the conveyances from him to his children were voluntary upon the face thereof and void as to them. — Seals v. Robinson, 75 Ala. 363; Caldwell v. King, 76 Ala. 149.

The respondents Lucy Hawkins and Felix Folmar say that the recited considerations were inserted in the deeds by mistake, that the true consideration is not disclosed, and they invoke the aid of the chancery court by cross-bill to have the conveyances reformed so as to make them recite the true consideration. In order to reform a contract which fails to express some important element- thereof, it must appear that the parties mutually intended that it should have been so expressed, or that it is expressed differently from what they had mutually agreed it should express, and this failure or difference of expression is the result of mistake of fraud. — Clark v. Hart, 57 Ala. 390; 1 Story’s Eq. Ju. 140, 152; 1 Brick. Dig. p. 68, §§ 606, 607, 608. “Another familiar principle is that courts of equity proceed with very great caution in reforming written instruments, and, if the mistake as alleged is not admitted, it must be. proved by clear, exact, and satisfactory evidence, the presumption being that the contract as executed contains tlie conclusion of all previous negotiations on the subject.and is the final agreement of all parties.” — Kilgore v. Redmill, 121 Ala. 485, 25 South. 766. The. chancellor was fully justified by the evidence in holding that the grantees under the conveyances from George A. Folmar were not entitled to a reformation of the deeds.

The chancellor erred in sustaining the demurrer to the cross-bill, and a decree is here rendered overruling said demurrer. The sale, having been made and confirmed, is hereby vacated, and the decree having included the Beall & Coston debt, without giving the respondents the. benefit of the $7,500 collateral note, is reversed in that particular, but is affirmed in so far as it affects the individual indebtedness of Geo. A. Folmar, and in holding the conveyance from him to the other respondents inoperative as against the claim of the complainants.

Affirmed in part, reversed and rendered in part, and remanded.

Weakley, C. J., and Haralson, Simpson, and Den-son, JJ., concur.