51 So. 954 | Ala. | 1909
The case on appeal is thus correctly and succinctly stated by counsel for appellant:
“Lehman-Durr Company filed a bill to set aside a fraudulent conveyance executed by Folmar to his children. There was a final decree in favor of the complainant, and the property alleged to have been fraudulently conveyed was put up for sale under the decree. George A. Folmar filed a cross-bill in the main cause, in which he alleged that, when he executed the notes on
“After the dismissal of the appeal, the register proceeded to hold the reference. The lands had already been delivered up pursuant to a notice from the solicitors of Lehman-Durr Company to the solicitors for said Folmar (Record, pp. 41, 42), so that the question before the register was simply one of rents and profits for which Lehman-Durr Company should account during the period of its possession. In the decree of reference (Record, p. 37) the chancellor held that the rule applying on an accounting by and between mortgagor and mortgagee, after default and before foreclosure, as to the liability of the mortgagee to acccount for rents and profits, does not apply. The mortgagee is regarded
“The. register held the reference as required, and stated the account, and reported a balance owing by Lehman-Durr Company of $994.97 (see page 53). On the reference Lehman-Durr Company filed a statement showing the amount of rents collected and when collected, and the taxes paid. They also claimed credit for certain expenses in the way of commissions charged by one Sentell, for renting out the proper^ and collecting the rents. There was an agreement of counsel (shown on page 44 of the Record) that the place of business of Lehman-Durr Company was in the city of Montgomery, Ala.; that the lands sold were situateu in Crenshaw county, Ala., where the plaintiff had no representative; that, after the lands were bought under the decree, plaintiff employed Sentell, who resided near the land, and who was a competent man for that pur
The decree appealed from in this case is final in such sense as to support an appeal under section 2837 (426) of the Code.—Black on Judgments, vol. 1 (2d Ed.) § 41; Walker v. Crawford, 70 Ala. 567.
We find no reversible error in the decree of the chancellor appealed from, ordering Lehman-Durr Company to pay over to the defendants the sum of $994.97. This appears to have been the amount of the rents, with the interest thereon, received from the lands during the time they were wrongfully held by Lehman-Durr Company, and for which restitution was made by the decree. Rents are incident to the lands, and follow them; in
Lehman-Durr Company’s acts being wrongful, it was properly denied compensation for services in its wrongful.assumption of control and management of Folmar’s land. Certainly this must be considered to be the attitude and condition of the parties so far as this appeal is concerned.
Restitution, such as this, is a remedy, the purpose of which is to restore to an appellee his own or its equivalent, as near as may be, of which lie has been deprived by an erroneous judgment which is reversed. A decree of restitution is intended to restore to the aggrieved party that which he lost in consequence of the. erroneous judgment reversed. It may be a part of the reversed judgment, or it may be a separate judgment based on the one of reversal.
A judgment or decree of restitution, such as the one here appealed from, does not necessarily finally determine the rights of the parties to the subject-matter restored. It may or may not do .so, depending, of course, upon the judgment or decree of reversal. The decree of restitution itself, aside from the decree of reversal, does not undertake to determine the rights of the parties to the subject-matter, further than to restore the parties to the condition in which they would have been, but for the erroneous judgment or decree which is reveresd.—Ex parte Walter Bros., 89 Ala. 237, 7 South. 400; Wright v. Hurt, 92 Ala. 591, 9 South. 386; West v. Hayes, 120 Ala. 98, 23 South. 727, 74 Am. St. Rep.
The decree of the chancellor is affirmed.
Affirmed.