65 So. 71 | Ala. | 1914
This bill was filed, April 28, 1911, by the Fort Payne Company to foreclose a purchase-money mortgage given to it by E. C. Drew and Louisa H. Drew. The Drews and the Fort Payne Fuel & Iron Company were made parties defendant. On May 2, 1911, after notice to all respondents and appearance by all parties, through their respective solicitors, the register appointed a receiver as prayed in the bill. ' E. C. Drew effected a review of the register’s action by the chancellor; and the chancellor affirmed the action of the register, on May 1, 1911. The respondents filed, on September 22, 1911, a motion to strike certain parts of the original bill, and upon hearing before the chancellor this motion was overruled on October 26, 1911. In this order it was provided that “respondents are allowed until Monday, October 30, 1911, at 12 o’clock noon, within which to answer the bill of complaint, and if the answer is not filed by that time, the complainant may apply to the register for decree pro confesso.” At 11 o’clock a. m., October 30, 1911, the respondents filed their answer to the original bill; and made their answer a cross-bill. In this pleading respondents alleged fraudulent misrepresentations by the Fort Payne Company that it owned in fee all the lands and personal property and had a good right to sell the same, and that a great deal of the property described in the conveyance did not belong to the Fort Payne Company; much of that to which the Fort Payne Company had no title or right being greatly improved. It was also alleged that-the respondents had paid, approximately, $29,000 on the purchase price, and that they had expended $40,000 in
The consent decree entered in the. bankruptcy court did not of course effect, as it did not purport to even undertake, to constitute the trustee a party, in any sense, to the cause then and theretofore pending in the chancery court. It seems necessary, under the practice in the bankruptcy court, that a trustee be given the consent .of such courts to intervene in a state .court in. a cause therein pending against the bankrupt.—Collier on Bank. (8th Ed.) pp. 221, 222. But the right of a trustee to intervene in such a pending cause is to be heard in and determined under the practice and rules of. the State Court.—Collier on Bank. (8th Ed.) pp. 223, 224; Bank of Commerce v. Elliott, 109 Wis. 648, 85 N. W. 417, 6 Am. Bankr. Rep. 409; 5 Cyc. p. 378; Nat. Dis. Co. v. Seidel, 103 Wis. 489, 79 N. W. 744.
It is manifest that papers undertaken to be filed in this chancery cause, by the trustee before that court had, either affirmatively or tacitly, allowed the trustee to intervene, were well subject to be stricken by the court in which the trustee, not yet recognized as a party to the cause, assumed to proceed as a party thereto-, and so without regard to the real merits of any contention his premature assertions of right or remedy contained.
Subsequent to the admission of the trustee as a party respondent, the trustee filed demurrer and answer and cross-bill. The demurrer was overruled by the chancellor ; and o-n the trustee’s appeal that action of the chancellor was affirmed.—Baxter v. Fort Payne Co., 182 Ala. 249, 62 South. 42.
There was no error in striking the second answer and cross-bill of E. C. Drew, as shown by the decree of May 13, 1913, no notice thereof having been given, and no leave of the court having been granted to file it. — Code, § 3126. The effect of the order-striking the paper was to only eliminate it as respected the original bill, leaving it as a response to the cross-bill filed by the trustee..
Apart from these considerations, the only appellant assigning errors being the trustee in bankruptcy, any unfavorable disposal of an alleged cross-bill (of Drew)
There is no merit in the contention that the mortgage was unenforceable and void because of the failure of the Fuel & Iron Company, a foreign corporation, to secure a license in this state, even if it were assumed (for the occasion only) that Drew was trustee for the corporation.—Brooklyn Ins. Co. v. Bledsoe, 52 Ala. 538; Alexander v. Ala. Western Ry., 179 Ala. 480, 60 South. 295.
It was asserted against the granting of the relief sought in the original bill that fraudulent misrepresentations were made as to the title of the grantor (mortgagee) to parts of the large property described in the conveyance and in the mortgage back. The burden of proof assumed by the allegation stated was to sustain it by clear and convincing evidence.—Coleman v. Kiernan, 159 Ala. 545, 49 South. 230. A review of the evidence bearing on the issue thus raised fails to convince this court that the burden was discharged.
The decree is affirmed.
Affirmed.