127 Ala. 393 | Ala. | 1899
-The original bill in this cause was filed by the special administrators of the estate of Tulane. On the 8th day of September, 1898, a final decree was rendered dismissing the bill. On the 31st day of July, 1899/ this appellant, as executrix of the estate of Tulane, appeared before the register and prayed an appeal to this court from the decree dismissing the bill, and filed her appeal bond, which was approved by him and the appeal allowed, it appears in the order entered by the register allowing the appeal, that the term of office of the special administrator had expired. The appellee makes a motion here to dismiss the appeal.
The question here presented cannot on principle be differentiated from the one reviewed in Stoutz Admr. v. Huger, 107 Ala. 248. Unless the decision in that case is receded from, then the motion to dismiss this appeal must be denied. . Without reviewing what is there said as to the construction which must be given the statutes making provision for appeals, we will simply add that the right of appeal or the right to have reviewed a judgment or decree in a cause has long since been recognzied by this court, to be conferred not only upon the parties to the record, but privies to the record or those injured by the judgment or decree and who will, consequently, derive advantages from its reversal. — Hill v. Hill. 6 Ala. 166; Headon v. Turner, Ib. 66; Dupree v. Perry, 18 Ala. 34; Roberts v. Taylor, 4 Port. 421; Perine v. Babcock, 6 Port. 391. This same right is enforced by appellate courts in other jurisdictions. — 2 Encyc. Pl. & Pr. 151. Of course, appellant’s proper relation to the suit must be shown by the record. And in Sewall v. Bates, 2 Stew. 462, s. c. 3 Stew. 199; Bettis v. Taylor, 6 Port. 333, while recognizing the appellant’s right to prose
Under section 62 the probate judge is authorized to appoint special administrators pending any contest respecting the validity of a will or for the purpose of coh lecting the goods of the deceased or in any other case, in which it is necessary, until letters testamentary or of administration have been duly issued.
Under the provisions of section 65, upon the-grant of letters testamentary or of administration, the authority of the special administrators ceases.-
Section 332 provides, “Suits 'commenced by a special administrator do not abate by the. appointment of an executor or administrator in chief, but may be prosecuted by such executor or administrator,” and section 348 provides that “Any -subsequent administrator, or administrator with the will annexed, may have execution on any judgment recovered by any person who preceded him in the administration of 'the same estate, without reviving the same, or without proceeding to notify the defendant in such judgment.”
The institution of this suit by the -special administrators was for the benefit of- the estate and there is no doubt, under those statutes, but the interest which the esate had in the suit, devolved upon this appellant. Nor can it be a matter of seri-ous controversy that this appellant as the representative of the estate is precluded by the decree dismissing the bill, unless her appeal is allowed.
The motion to dismiss the appeal is overruled.
The mortgage assailed as'fraudulent was made to secure the payment of three promissory notes of date October 9, 1897, payable, respectively, three, six and nine months after date, given for a present debt, and in the' event of a failure to pay either of them with interest at maturity, “then all of said notes shall become due and payable at once,” and the mortgagee authorized to foreclose the
The mortgage contains this further provision: “It is further understood and agreed that the said McKinney Thomas may at any time in his discretion sell any part of the whiskey, which is now in the said warehouses, or which may hereafter be manufactured and placed therein by him, upon paying the Government charges thereon, and paying the proceeds of such sale to the said Josiali Moxtís & Ooxnpany,” the mortgagee.
The bill after averring the complainant’s intestate to be a creditor of the mortgagor, also avers that the respondent knew of his insolvency when the mortgage was ■taken; that the mortgage reserves a benefit to the mortgagor and was made and received to enable him to carry on the business of farming upon the plantation, and the lmsiness of a distiller of whiskey conducted on said plantation mentioned ixx the mortgage (which is made an exhibit to the bill) unmolested by his creditors other than the mortgagee. It is further averred that “when the mortgage was made there was upon said place mentioned in the mortgage, a crop of cotton, as well as crops of corn, and said mortgage allows and provides by implication the said mortgagor might use tire said crops for his own benefit, as well as all future crops, while said mortgage debt might be renewed, without any limit to the period of renewals or the crops to be made.”
It is not averred in the bill that the debt secured by the mortgage is not bona fide, nor that the property con
The first question is, conceding that under the provision of the mortgage the mortgagor is entitled to the retention of possession of the property conveyed by it, was this such a reservation of a benefit to him as invalidates it as against the complainant? This point was expressly decided by this -court in Howell v. Carden 99 Ala. 100, after an exhaustive examination o f the authorities and a thorough analysis o-f the question upon principle. In 'that case it was held that it was not.
The next question, whether or not a mortgage executed by an insolvent grantor upon his crops, etc., and a crop to be grown, which gives the mortgagor the right to consume the property covered thereby, in making another crop, reserves such a benefit to the grantor as will make the mortgage fraudulent and void as to his other creditors, has also been decided adversely to the contention of the appellant in Pugh, Stone & Co. v. Harwell & Clark, 108 Ala. 486.
It is not contended by appellant that the right of disposition of the whiskey conferred upon the mortgagor by the mortgage affects its validity as against a creditor, nor indeed would such a -contention, if made, be of any force. For the reason that the authority conferred upon him to make sales of whi-sky upon paying the proceeds of such sales to the mortgagees constitutes him their agent and they could not escape from crediting on their indebtedness the proceeds received by him because he had fraudulently or dishonestly misapplied or employed
Affirmed.