85 So. 540 | Ala. | 1920
In 1894 Beall Coston, a partnership composed of J. W. Beall and T. W. Coston, the latter now deceased, were beginning a general mercantile business at Luverne in Crenshaw county. Beall was indebted to the Lehman-Durr Company, a corporation doing business at Montgomery. Beall Coston needed funds and to raise them, Beall, who owned two lots on the main business street of the town, conveyed them to Beall Coston, taking a promissory note for the sum of $7,500. The deed contained a recital that grantor did grant, bargain, sell, confirm, and convey the said lots "for and in consideration of the purchase-money note of Beall Coston, dated April 2, 1894, *300
and due November 1, 1894, for the sum of seventy-five hundred dollars," etc. This recital of an outstanding note for the purchase money carried notice of the vendor's lien to all persons claiming as purchasers. Shorter v. Frazier,
Appellant's right to maintain a suit on the note is affected by some further facts which should be stated. In the fall of 1894 Beall Coston sold their stock of goods to appellant, and shortly thereafter the Lehman-Durr Company filed a bill against the parties to that sale, averring that it had been made in fraud of creditors. That suit was settled between the parties June 12, 1896, appellant giving his notes aggregating $3,733.71, and T. W. Coston his for $2,271, to secure the indebtedness of appellant and Beall Coston to the Lehman-Durr Company, the company agreeing, as appellant states the case, to transfer to appellant's son for appellant's benefit all evidences of debt held by it against Beall Coston. October 16, 1897, the Lehman-Durr Company filed their bill in the chancery court of Crenshaw against J. W. Beall and T. W. Coston, averring that the note of April 27, 1894, supra, had been transferred to it as collateral security, first, for the payment of an indebtedness of Beall Coston, and, secondly, for the payment of an individual indebtedness of J. W. Beall, that said note was unpaid, and praying that the property here in suit be sold to satisfy the vendor's lien which it claimed. It was further averred that the Savannah Guano Company, then in possession, claimed an interest in the property, and it was made a party defendant. Pending that cause, the Lehman-Durr Company, July 19, 1898, filed in the chancery court of Crenshaw another bill against the appellant and his children, averring that appellant's notes for $3,733.71 remained unpaid, and praying that the conveyance of his lands, which appellant had made to his children, be set aside and the lands subjected to the payment of the notes. Appellant in this last-mentioned cause, September 16, 1901, filed an amended cross-bill, in which he recited the transaction in which he had executed his notes, averring that the Lehman-Durr Company, in consideration thereof had agreed to transfer and assign to him the $7,500 note here in question, together with all collaterals held for the security of said note, and did transfer and assign to him "certain notes, accounts and evidences of debt due or to become due to said Beall Coston," held by the company as collateral to the indebtedness of Beall Coston, but not the $7,500 note aforesaid; that the Lehman-Durr Company falsely represented that said note was held by it as collateral security for the individual indebtedness of J. W. Beall, but not as security for the indebtedness of Beall Coston, and that, relying upon that representation he had executed the note upon which he was sued. Further, appellant in his crossbill averred that the Lehman-Durr Company on its bill of October 16, 1897, had obtained a decree condemning the lots in question to the satisfaction of its alleged vendor's lien. The prayer of appellant's cross-bill was that his notes for $3,733.71 be canceled, or that the $7,500 note be transferred to him on payment of the notes for $3,733.71, or that the Lehman-Durr Company be required first to exhaust the security of the said $7,500 note and apply the proceeds to the satisfaction of his notes before proceeding further against him. There was a decree in that cause which was reviewed in
Appellant in the present cause is content to dispose of the litigation commenced on July 19, 1898, by saying that thereby he got a decree settling his right to the note for $7,500, citing Folmar v. Lehman-Durr Co.,
"This case will therefore be reversed, in order that the chancery court may require the complainant [the Lehman-Durr Company] to give the respondent Geo. A. Folmar the benefit of said collateral by requiring it to exhaust the $7,500 before collecting from him any part of the debt of Beall Coston that is included in the amount claimed under the original bill."
The further history of the cross-bill in that cause is not shown by the record in this. If there were further proceedings, we can only assume that they were had in accordance with the opinion and decree of this court. Whatever else the court may have decreed, it could not cancel the note which appellant had executed without ipso facto destroying his alleged right to the note for $7,500, for if the contract of compromise and settlement between appellant and the Lehman-Durr Company was to be rescinded at all, then on inflexible principle it must have been rescinded in toto. Nor could the court, on the evidence, have decreed a transfer of the $7,500 note to appellant. The evidence, including that of appellant, is plain to the effect that the $7,500 note was the subject of consideration between the parties to the settlement, that appellant was given to understand that he could not have it among the collateral securities then delivered to him, and that appellant contracted upon the express theory and basis that he was not to get it. In general, of course, the transfer of a note passes to the transferee the right of the transferor in collateral held for its security, and the mere fact that the collateral is not delivered to the transferee will not deprive the latter of his interest, because the original pledgee, after selling the note, holds the collateral as agent or trustee for his transferee. But, as was said in Alabama Warehouse Co. v. Jones,
And it is certain at any rate that there is no proof of a decree purporting to vest in this appellant any right or title in or to the $7,500 note, and that the Lehman-Durr Company continued thereafter to claim and exercise ownership of that note. The ruling in Folmar v. Lehman-Durr Co.,
Reverting now to the bill filed by the Lehman-Durr Company on October 16, 1897, to enforce a vendor's lien on the property here in question for the $7,500 note, there was on November 11, 1899, a decree in accordance with the prayer and an order for a reference to ascertain the amount due to the Lehman-Durr Company on the note. But that decree of reference was never excuted, and on July 21, 1905, that cause, so far as the court was concerned, was brought to a conclusion by a notation on the docket, "This cause is settled as per agreement on file." The agreement has disappeared along with the rest of the file, and of the agreement at least no record was made. Appellant in argument has treated this as a circumstance of suspicion against appellees and their witness J. W. Beall. The intimation is that Beall, or some one else interested in the defense, abstracted the agreement from the file in order to conceal its contents. It is not necessary to charge any one with an unlawful abstraction of the agreement; but it does seem that, if the disappearance of the paper must be attributed to any of the parties, or any one in their interest, as a speculation founded upon the theory that human conduct is influenced by interest, we would need, in giving direction to suspicion, to know the purport of the document. As the matter stands, it can only be supposed that the agreement had some reasonable relevancy to the issue in controversy, and measurably reflected the circumstances out of which it arose. In that case the Lehman-Durr Company had a decree declaring a vendor's lien, and the only open question was as to the amount of it. Appellant was not a party to that cause, nor was he a party to the agreement by which it was settled, nor is the agreement pleaded as res judicata. But *302
the title to the $7,500 note was in the Lehman-Durr Company — a fact that had not been denied by this appellant in his cross-bill in the cause of the Lehman-Durr Co. v. Folmar and his children, but which, rather, he, in one aspect of his bill at least, recognized by necessary legal inference and insisted upon as a basis of relief — and the parties to the cause in which the agreement was made were competent to dispose of the vendor's lien in question, and, under the opinion which this appellant had from this court in Folmar v. Lehman-Durr Co.,
In Beall v. Folmar, 75 So. 172,1 it was ruled, on demurrer, that the averments of the bill in this cause did not show appellant's cause of action to be barred by lapse of time. In the evidence it appeared that Beall and those claiming under him, including these appellees, have been continuously in possession in the active exercise of ownership since the date of the conveyance and note upon which the claim of a vendor's lien is based, nearly 20 years prior to the filing of the bill in this cause. It may be that this possession did not measure up to the rule which holds that "Where the original possession by the holder of land is in privity with the title of the rightful owner, in order to enable such holder to avail himself of the statute of limitations, nothing short of an open and explicit disavowal and disclaimer of holding under that title, and assertion of title in himself brought home to the other party, will satisfy the law" (Zeller's Lessee v. Eckhert, 4 How. 289,
It results from the foregoing considerations that there existed no interest in the note for $7,500 by virtue of which Weil, or the Lehman-Durr Company before him, could have enforced a vendor's lien. Weil's act of assignment, therefore, vested no such right in appellant. The ultimate fact then appears to be that, even though appellant supposed some virtue still to inhere in the note, or may in fact have so inhered, the transfer was champertous — evidenced a speculation by appellant in which he ventured nothing. However, he got no more than his money's worth.
The chancellor's decree dismissing appellant's bill is affirmed.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.
