Andrews v. Burns

11 Ala. 691 | Ala. | 1847

ORMOND, J.

The court erred in refusing to credit the administrator with the amount paid Andrews on the mortgage. Although the mortgage was not recorded, it was nevertheless binding on*the mortgagor and his administrator, and the latter could not prevent a sale of the slaves for the satisfaction of the debt secured by it. The arrangement which he made, to relieve the slaves from the lien, was beneficial to the estate, they being worth more than the mortgage debt, and was in effect the same, as if the mortgagee had caused the sale to be made, and. paid him over the surplus.

The omission to register the mortgage, did not make it void as to the creditors at large of the mortgagor, but only as against such, who having no notice of the mortgage, have obtained a judgment against the mortgagor, and obtained a lien on the mortgaged estate, before the mortgagee by a sale, had obtained the benefit of his mortgage. [Ohio Life In. & Tr. Co. v. Ledyard, 8 Ala. 866.] Such appears to be the case here. None of these creditors of the mortgagor, appear to have acquired a lien on the mortgaged estate, previous to the mortgagee having obtained satisfaction of his mortgage ; and as the administrator had not the power to prevent the sale of the slaves included in the mortgage, he is entitled to a credit for the amount due upon the mortgage paid by him, to the mortgagee; the effect of which, as already shown, was precisely the same as if he had suffered the slaves to be sold by the mortgagee.

The remaining question, growing out of the sale of the crop of cotton, appears to have been misapprehended by both parties, judging from the exception taken, and the ruling of the court. By referring to the account rendered by the commission merchants in Mobile, it appears that the administrator had obtained bagging and rope, and an advance of money, in anticipation of the crop of the estate, which, with interest and commissions, amounted to $452 42. That the net proceeds of the crop, with interest to the time of stating the account, amounted only to $394 47, leaving a deficit of $57 95, which the administrator paid in cash. This last item, the administrator claimed to be allowed a credit for, having charged himself in his account, as stated with the court, with the whole amount of the sales of the cotton. This is clearly a mistake. He should have charged himself with $357 75, that being the net proceeds of the crop, after deducting the account for bagging and rope used about the crop, 'with interest from 21st January, 1845, and if not so entered, it must be corrected.

Let the judgment be reversed and the cause remanded.