49 So. 402 | Ala. | 1909
The only question involved on this appeal is the effect that should be given a certain written agreement of counsel filed in the lower court. The agreement is in words and figures as follows: “W .H. MacAfee, Assignee, v. MacAfee Company. In the Chan-eery Court, Jefferson County, Birmingham, Alabama. In re Reference Regarding Claim of B. F. Roden Grocery Company, Claiming a Lien and Priority of Payment. Whereas, the same question is involved in the above matter as in the reference of Benj. S. C'atchings, Assignee, Arnold & Mathis, J. D. Wallenhaupt, and P. Giacopazzi; and whereas, the references have been held in said matter; and whereas, it will save cost of a reference in this matter: We, the undersigned, hereby agree that when a decree is rendered by a chancellor in any one of the above references, declaring a lien or preference, a similar decree shall be rendered in the claim of B. F. Roden Grocery Company; in other words, if a lien is declared in favor of any one of said claimants, a similar lien shall be declared in favor of B. F. Roden Grocery Company for the full amount of their claim. If no lien is declared, then a similar decree shall be rendered in regard to B. F. Roden Grocery Company. (Signed) B. F. Roden Grocery Company, by C. B. Powell, Atty. W. H. MacAfee, Assignee, by Jno. W. Tomlinson.” Indorsed: “Filed in office Dec. 11th, 1905. J. W. Altman, Register in Chancery.”
The facts necessary to a decision of the question are in substance as follows: Appellee, as assignee of the MacAfee Company, filed his bill to administer the trust estate in the chancery court of Jefferson county; the assignment being a general one for the benefit of all the assignor’s creditors. Various creditors filed their claims of indebtedness; some claiming a lien which they sought to have the court declare and enforce. These are special
Its petition was resisted by other creditors, and by the assignee, upon the ground that the spirit of the agreement — if not the letter — was that petitioner’s claim should abide the result of the final determination of the claims on the merits, and not the decree in the chancery court, or, in this court, on a technicality, and on the further ground that neither the assignee nor his attorney could bind the other creditors by this agreement. The chancellor seems to have taken the same view that the assignee and the other creditors took of it, and disallowed the petitioner’s lien, but allowed him to share only in the assets as other creditors. From that decree this appeal is prosecuted.
The assignee is a trustee, and represents the trust property, but not to the extent to bind the court and the beneficiaries of that trust fund as to a disposition of it, when it is being administered by that court, and they are parties to the proceeding, but not parties to the agreement between counsel for the assignee and that of one other creditor. If that could be done, the counsel for the assignee could give the whole of the trust fund to one creditor, and thus deprive the other creditors,
Had this not been the intention of the parties to the agreement, petitioner would certainly have applied for his decree upon the rendition of the decree by the chancellor as to the other liens mentioned in the agreement. An appeal was certainly contemplated by both parties, which is shown by their actions, if not by the words of the agreement; and we think, also, that it was a decision upon the merits that was intended, and not one upon a pure technicality, not involving or deciding the question at issue. We are for this reason constrained to agree with the chancellor in his conclusions, and affirm the decree denying the petition.
Affirmed.