Foster v. Smith

16 Ala. 192 | Ala. | 1849

CHILTON, J.

It is perfectly clear that if the claimant h.as no right to the property, the title to which he proposes trying by interposing his claim, he cannot recover, because a third person, a stranger to the proceeding, may be supposed to have a title paramount to that of the defendant in execution. By the interposition of his claim, he arrests the execution of the process upon the property to which he asserts title, and virtually asserts that the sale of it for the satisfaction of the plaintiff's ft. fa. is inconsistent with his rights. If he has no such rights, it is a matter of no concern to him whether the rights of third persons, between whom and himself there is no privity, may be invaded. McGrew v. Hart, 1 Por. Rep. 175; Frow, et al. v. Downman, 11 Ala. Rep. 880. See also Dent v. Smith, 15 Ala. Rep. 288.

The deed of gift from Lindsey to Jane S. Draughan for the slave in controversy was made directly to her, without the intervention of a trustee. The claimant offered in evidence what purported to be a record of his appointment as trustee for Mrs. Draughan under said deed, by the Register of the Chancery Court at Monroeville, which evidence the Circuit Court rejected. The court decided correctly that such ap«-pointment was a nullity. The Register had no power to make it. The statute authorises the Register, when any trustee shall die, to appoint one or more trustees in the place of such deceased trustee, upon the application of any person interested in the trust estate, provided notice, &c. be given. Clay’s Digest, 350 § 33. But the power is not vested in the Register to appoint a trustee for the execution of a deed which is not a conveyance to a trustee. The same may be said with respect to the Act of 1829, authorising the Circuit Court to appoint a trustee in case of the resignation or removal of the-trustee named in the deed. Clay’s Digest, 581 § 3. The Court of Chancery is alone adequate to afford relief in such case. It follows then, as the appointment by the Register of the claimant trustee for Mrs. Draughan, was coram nonjudice and void, and as the Circut Court had no power to make the appointment which the claimant sought to have made upon the trial, that the said claimant had no right to the property, and therefore no right to interpose his claim.

The doctrine that a party is considered as admitting the character in which a plaintiff sues by pleading the general issue or plea in bar, can have no application to this case, so as to dispense with the necessity of proof of title in the claimant, when the burden of proof has been once cast upon him by the proof of property in the defendant in execution. It would be difficult to conceive, how the trusteeship of the claimant could be otherwise brought within any legitimate issue than as connected with the proof of his title. The plaintiff in execution avers, that the slave levied upon is subject to the execution; the claimant as trustee, negatives or traverses the plaintiff’s averment and thus an issue is.formed under the direction of the court, as provided for by the statute. Planters’ and Merchants’ Bank of Mobile v. Willis & Co. 5 Ala. Rep. 770. Pleas in abatement as to the character in which the claimant interposes his claim, are unknown in this statutory proceeding to try the right of property.

But I .am clearly of opinion, that if he had brought his action of detinue, as the trustee of Mrs. Draughan, and the general issue had been pleaded, it would not have sufficed for him merely to have shown a bill of sale or deed of gift to her, without connecting himself with her title. Where an assig-nee of an insolvent brings assumpsit, the general issue does not supercede the necessity of proving that he is such assig-nee ; and so of insolvent’s trustees. 2 Wend. Rep. 319, and cases there cited by Marcy, J. 2 Gill. & Johns. 73; 2 Phil. Ev. (C. & H’s notes) 448. So in this case, we think it would have been incumbent on the complainant to have proved that 'the trusteeship had devolved on him, if the proof of the devolution of the trust was necessary to vest in him a title. Nabors v. Shippey, 15 Ala. Rep. 293.

We are unable, in any aspect of the case, to percieve any error in the record, and the judgment is consequently affirmed.