130 Ala. 281 | Ala. | 1900
The replevying of the property did not operate to- relieve it from the lien created by its seizure under the writ. A replevy is intended merely as “an inexpensive method of preserving the property until it is wanted for the payment of the judgment that may be rendered, and until the bond is forfeited, the property remains in the custody of the law, and the lien is unimpaired.”—Kyle v. Swem, 99 Ala. 573; Cordaman v. Malone, 63 Ala. 556. A party receiving property under a replevy bond, like a bailiff or a pledgee, holds it in express ' recognition of the rights of the plaintiff in the suit. He may be said, in the strictest sense of the word, to be a trustee of an express trust. While entitled to the possession of the property until a determination of the cause in favor of the plaintiff, he is not the owner of it. The right of the plaintiff to subject the property is recognized by him — a recognition, it is true, imposed on him by his right to its possession. But it is actual and voluntary and not “superinduced upon the transaction by operation of law, as matter of equity, independent of the particular intention of the parties,” and is, therefore, not an implied or constructive, but an express trust.—James v. James, 55 Ala. 532; 1 Beach on Trusts, §§ 1-86.
In this csae, there was a mortgage lien on the goods seized and replevied by the mortgagor. It is scarcely necessary to say that the mortgagor in possession was a trustee for the mortgagee, and when the mortgagor obtained the possession of the goods under her replevy bond, after seizure, she did not absolve that relation, but became 'also trustee under the bond. Her possession by virtue of the bond made her bailiff of the goods. So
The third, fourth and ninth assignments insist that the bondsmen were released and discharged from liability in respect to the thousand dollars, and that they (the appellants) are no longer liable on their contract. It appears that, after the final decree in the foreclosure suit, and the liability of the appellants to refund had become fixed, the complainant in that suit, in consideration of the transfer of the contract or obligation of the appellants and of other property possessed by them subject to execution, released and discharged the sure
The other- assignments make the defenses of staléness, limitations, and that -complainant has a plain, adequate and -complete remedy at law.
This bill is one to follow trust property originally belonging to the complainant as mortgagee, which was returned to the mortgagor as bailiff under the replevy bond and converted by sale into money by her, and deposited to meet the judgment. The appellants received a portion of this money, acknowledging in writing its trust character, and promising to pay it whenever the liability of the sureties on the replevy bond was judicially determined. The purpose and intention as evidenced by the contract -of repayment was to restore the trust fund to the trustee, - Baker, to be appropriated by him to the payment of the mortgage debt as ascertained and enforced by the decree in the foreclosure suit. It was not money which Baker could -dispose of to the appellants, and the essence of their -obligation- was and its proper construction is, that they received the money in trust to be held by them -for the payment of the mortgagor’s debt, pro tant'o, when judicially detemined against the -sureties on the replevy bond. In -other words,- they as recipients -of the money from Baker understood and recognized his trust, which was to hold the -money as proceeds of mortgaged property for the payment of complainant’s debt if he succeeded, and the terms of their engagement, properly construed in connection with all the attendant facts, made them stand with respect to the complainant in the shoes of Baker in 'sio far as the money received by them is concerned. There was nothing adversary whatever in
The case,- then, isi equitable in all its features. And the bill is neither open to objection of staleness nor lim-’ Rations. It was filed within six years after the final decree in favor of the complainant in the foreclosure proceedings, when by the terms of the appellant’s contract, this complainant .became entitled to call on them for this -money. These appellants have no right to impute to their conduct in receiving the trust fund a character opposed to what it appears to have been by the terms of their written obligation. They cannot now say they acted tortiously and in contravention of the trust, and that they can only be held by construction of law, when they acknowledges! the trust and obtained possession of the money on the express condition to refund it on the determination of the litigation. It would be opposed to all ideas of justice to permit parties receiving trust funds under an agreement to- refund, when needed for the exigencies of the trust, to successfully insist that the statute of limitations began to run in their favor before that event happened.
iWe will presume complainant’s assent to the transaction by which the proceeds of the mortgaged property were placed in Baker’s hands, since it was one for her indemnity and benefit.
The money in Baker’s hands] was, in equity, essentially the complainant’s, and the appellant’s reception of a portion of it being in express recognition of Baker's trusteeship, their obligation to repay here sought to be enforced, is voluntary and contractual and in no sense a constructive trust -barred by limitations commencing to run on the reception of the money.
There is no error in the record, and the decree is affirmed.