108 Ala. 288 | Ala. | 1895
The deeds of trust executed by the Mary Lee Coal & Railway Co. to the Mercantile Trust & Deposit Co. to .secure bonds do not, in our opinion, cover or embrace the rents, incomes, profits or proceeds of the property which is expressly granted, or of the business of mining coal, &c., which the grantor was to carry on. They in terms embrace all the “personal property of every kind now owned or- hereafter to be acquired and owned ‘and used,, whether by purchase or ¡otherwise, in connection with-and for use in developing and operating fits said coal mines-or other works of improvement now on or hereafter to be opened upon said ■lands or any part thereof.” : This clause manifestly refers, not to the product or incomefrom said mines, but
The property described in complainant’s bill as certain coal which had been mined and certain coke which had been manufactured and certain pig iron, all which was in the possession of the Mary Lee Co. when the receiver was appointed, and also certain bills receivable filed by said company at that time representing the proceeds of the sale of products of its mine and coke ovens constituted in part the rents, incomes, profits, tolls, &c. of the property which was embraced in the deeds of trust but was itself not so embraced. Of course, therefore, these deeds could not have been rendered fraudulent as to other creditors by the fact that this property Was allowed to remain in the possession and at the unfettered disposal of the Mary Lee Co., the grantor therein.
This property not being embraced in these deeds— mortgages,jwe will call them — and. being rents, profits
All the property described in complainant’s bill, constituting, as it did, rents, incomes and profits of the mortgaged estate, but no part of said estate, had accrued to the mortgagor and been reduced to possession before there was any intervention by the mortgagee. It therefore belonged to and was the property of the mortgagor as fully as if it had not issued out of the mortgaged property at all but had come to him from another and entirely independent source. The mortgages or trust deeds involved here in terms recognize this and expressly limit the receivers right to after accruing rents and incomes, as we have seen. Whether rents and incomes thus ac 5ruing before the appointment of the receiver might be intercepted by him when the mortgage expressly em maces them, is not a question in this case.
The bill filed by the Mercantile Trust & Deposit Co., trustee, for the appointment of a receiver, foreclosure of said mortgages, &a., avers “that there are sundry notes
The present bill of the Alabama National Bank alleges that the bill of the Mercantile Trust & Deposit Co.
Upon these facts and averments, the position of the Alabama National Bank, complainant here, is that the decree, in so far as it authorized and required the receivers to take the property last mentioned in their possession, was collusive and fraudulent being prayed by the complainant and consented to by the respondent in that bill for the purpose of hindering, delaying and defrauding the general creditors, of whom the bank is one, of the Mary Lee Company. We think the- position well taken. As has been made to appear,' the mortgagee in its bill for a receiver and foreclosure prayed that the re
The parties to that case cannot escape responsibility on the theory which they now suggest that the decree was the action of the court or judge. If so the action was directly superinduced by them ; and it might as well be said that no relief could be had against a collusive and fraudulent attachment or judgment at law because the writ is issued by an officer and the judgment is rendered by a court. But beyond this, a decree rendered by consent upon a collusive and fraudulent presentation of the case is to be taken as the act of the parties thereto and not as the judgment of the court. As said by Lord Brougham in Earl of Bandon v. Becher : “A sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled; in order to make a sentence, there must be a real interest, a real argument, a real prosecution, a real defense, a real decision. Of all these requisites, not one takes place in the case of a fraudulent and collusive suit; there is no judge, but a person, invested with the ensigns
It is suggested also that the parties could not have intended to hinder or delay or defraud creditors by haying a receiver appointed for and put in possession of this property, since thereby the property is brought into possession of a court of chancery to be distributed, and when the bill alleging fraud shows on its face what and where the property is, and that from the reports of the receivers complainant acquired its information as to the character and whereabouts of the property. A complainant would know where property which had been c«>llusively attached or levied upon' under a collusive and void judgment was, and he would get this information from the return of the officer making the levy; but we are unable to see that this argues that the judgment or attachment was not collusive and fraudulent. And so the fact that the property in possession of the receiver may, at some time in the good pleasure of the mortgagor and the mortgagee, and when the hindrance and delay and defeat of the creditors’ ordinary and lawful remedies for the collection of their debts, have accomplished the illegal and fraudulent purposes of the parties to that suit, be distributed to the mortgagor and such of the original general creditors as have not been forced bjT these meretricious methods into sacrificing their demands, unless indeed in the meantime this fraudulent tieing up of the property has resulted, as intended, in arrangements, whereby the mortgagor is enabled “to properly conduct its operations,” can not exert any force upon the inquiry of fraud vel non in the procurement of the decree.
The complainant in the present bill' is entitled to relief against these collusive and fraudulent proceedings of the complainant and respondent in the bill on which the receivers were appointed, which proceedings have already doubtless delayed and hindered general credioors in the-assertion of their rights, and will continue to hinder and delay and ultimately defraud them if a remedy is not afforded. It is quite true that this complainant
The decree of the court below sustaining the demurrer to the bill is reversed ; and a decree will be here entered overruling said demurrer.
Reversed and rendered.