Andrews v. Ford

HARALSON, J.

— 1. It is insisted, that the bill does not show by positive averments any necessity for complainant to resort to the court of chancery. It does aver, that the assignee had moved out of the State and abandoned the business entrusted to him, which itself is enough to authorize the court to assume the administration of the trust (Cullom v. Branch Bank, 23 Ala. 797) ; and the averments of the palpable unfaithfulness of the assignee otherwise in the administration of the trust could hardly be more specific than they have been made in the fourth paragraph of the bill.

2. It is objected by demurrer, that l<!the bill and exhibits show that complainant’s claim is not against the Farmers Alliance Exchange of Chambers County, but against a different concern, to-wit, The Alliance Exchange and Store of LaFayette, Ala;” and that the bill is repugnant in its averments, as alleging a note from said F. A. E. of Chambers County — a party to the bill — - and the note executed is not by said Exchange, “but by another and different concern.”

Without reference to said note, and the obligations arising on it — whether it is the note of said “Farmers Alliance Exchauge of Chambers County” or of another— the averments of the bill are very unmistakable, that said corporation owed the complainant, on the 14th day of February, 1893, a debt of $1,100, as abalance due on a loan of $2,200, theretofore made by him to said corporation, which debt exists independently of said note, and to collect which, the complainant had the right to file this bill.

3. Tho objection is urged that the defendant corporation should have been made a party defendant to the bill. But it is shown that the corporation assigned everything it owned for the benefit of its creditors, that it is utterly insolvent, and has no further interest in the matter. There was no necessity, therefore, to make it a party defendant. — 1. Dan’l Ch. PI., 255 ; Story Eq. PL, 153 ; Watts v. Gayle, 20 Ala. 817 ; Fulgham v. Herstein, 77 Ala. 498.

4. The assignee, before entering on the discharge of his duties as such, entered into a bond, payable to flm said corporation, conditioned, that he “should well and faithfully perform all the duties as such assignee and pay such damages as may accrue from liis- failure to do so.” This bond was evidently intended to be in compliance with, the statute which authorizes a creditor of the assignor to require a bond “for the faithful administration of the trust;” but, it was made in advance of an order of tho court, based on an application of a creditor that it should be made, and it is payable to the corporation, instead of to the register ’of the court. — Code, §§ 3549-3551. It recites, as one of its conditions, that said corporation had, that “day made and executed a deed of assignment for the benefit of all its creditors, naming the said I. W. Andrews, as assignee,” and after reciting that he-had joined in the deed of assignment, as a party thereto, and the samo had .been delivered to him, and he had accepted the trust thereby created, then followed the other condition above quoted. The bond is not con-; ditioned in all respects, nor is it payable, as required by the statute to make it a statutory bond ; but, it is none the less a valid common law bond, and its obligations may be enforced in this suit for a violation thereof. — 3 Brick. Dig. 98, § 1. If it had not been made, the creel-itors might have demanded the giving of one, such as the statute allowed ; and having entered into this bond for the faithful administration of the trust, the assignee and his sureties will not be allowed to set up the defense against liability on the bond, that it is not in all respects statutory. Having assumed j urisdiction of the settlement of this trust, the court will not stop short of ascertaining and enforcing the liabilities of the sureties on said bond. There was no error in overruling the demurrer to the bill.

Affirmed.