56 Ala. 461 | Ala. | 1876
The bill is founded on two propositions, each of which we are constrained to answer negatively, and adversely to' the right preferred by the complainant. The first is, that Jones, the administrator of Cochran, was without power to release the mortgage executed by Calloway to the intestate in his life, without payment of the debt. We have, in two recent cases, been compelled to enter into a full consideration of the power of executors and administrators, in the absence of statutes restraining it, over the personal assets. The conclusion we reached is, that he has the full legal title to the dioses in action of the deceased, and is charged with the duty of collecting and reducing them to possession. Over them he has an absolute power of disposal, and may sell, assign, transfer, release, compound, or discharge them. No bona fide dealing with him can be disturbed. It is only when fraud or collusion exists-^-when those dealing with him participate in a devastavit he is contemplating, or actually committing, within their knowledge—
2. In equity, a mortgage is strictly and wholly a security for a debt. If no debt exists, a mortgage is impossible.— West v. Hendrix, 28 Ala. 226; Robinson v. Farrelly, 16 Ala. 472; 2 Story’s Eq. § 1018. At common law, on the death of the mortgagee, the legal estate descends to his heirs. It is, however, a mere dry, naked legal estate, subsisting only for the purpose of keeping the mortgage alive as a security for the debt, and is held in trust by the heir for the benefit of the personal representative, to whom the debt passes as assets; incapable of alienation or release, so as to affect the title or the security for the debt. — Taft v. Stevens, 3 Gray, 504. In equity, the mortgage passes as an incident, with the debt, to the personal representative, who alone can foreclose it, or discharge its condition, by receiving satisfaction of the debt, or by compounding it, or by extinguishing it, in any mode by which other debts passing to him may be extinguished.- — Story’s Eq. § 1016; 1 Lomax on Ex’rs, 395; 2 Redi. Ex’rs, 129, 452 ; 1 Williams on Ex’rs, 607. A mortgage may be discharged, or released, as well as paid; and this, either by a direct and express agreement made for the purpose, or by construction and implication of law, arising from other acts of the parties. — 1 Hill. Mort. 485 ; 2 lb. 458. The debt being the principal, and the mortgage but an incident ; the debt passing to the personal representative, as assets, and he having the power over it which he has over other personal assets; the consequence is, he has power to release the mortgage, or, by an assignment of the debt, to transfer it to another. The first proposition asserted by the bill is not maintainable. It was within the power of Jones, as administrator, to release the mortgage by the acceptance of other security, by express agreement, or by implication of law. If third persons, dealing in good faith with the mortgagor, were induced into transactions by him, on the supposition that it was released, from which they must sustain loss, the mortgage cannot be set up against them.
3. The next proposition made by the bill is, that the release of the mortgage, under the facts stated, was a devastavit, in which Calloway, the mortgagor, Baldwin, the purchaser from him, and Jones, the administrator, concurred. All that can be asserted from the averments of the bill, taking them in the strongest aspect, is, that Jones may have been indiscreet and injudicious in making the release, of which Calloway and Baldwin had knowledge, and by persistent solicitation induced hini into its execution, that Cal
Without resting our conclusion on this ground, the bill is far from disclosing that Jones, in making the release, committed a devastavit, and incurred personal liability. As we have seen, it was within the line of his authority to release the mortgage. Keeping within the line of duty and authority, he was bound to good faith, and reasonable diligence; and if, exercising these, a loss results, he is free from blame, and does not incur personal liability. — Dean v. Rathbone, 15 Ala. 328; Gould v. Hayes, 19 Ala. 459. The facts and circumstances existing at the time he enters into a transaction, not subsequent events, are material to be considered in determining the degree of his diligence. The release was not made by Jones, without a new and valuable consideration passing to him from the mortgagor. In consideration of it, a new mortgage was executed, on other real estate, of value sufficient to satisfy so much of the mortgage debt as was unpaid. Jones retained a mortgage on personal property, then probably of sufficient value to satisfy the debt. If he had been in possession of money, assets in his hands, to the amount of the mortgage debt, which he had authority to loan, no want of prudence could have been attributed to him in making a loan on the security he had for this mortgage debt after the release.
It seems to be supposed, because the security released was of much greater value than that he received, he was bound to retain it, not to exchange it, without receiving another of equal value. We cannot assent to the proposition. His duty was discharged, legally and morally, so long as he had and kept ample security for the debt. This transaction occurred in 1863, and the liabilities and rights of the parties must be determined by the facts then existing. On these facts the parties acted, and were compelled to act. If then the transaction had been assailed, it cannot be doubted that it would have withstood the test of judicial scrutiny. It would be gross injustice now to unsettle and destr.oy rights then fairly and justly established, because subsequent events
The bill is without equity; the decree of the chancellor, overruling the demurrer, must be reversed, and the cause remanded, that the demurrer may be sustained, and the bill dismissed.
