93 Ala. 593 | Ala. | 1890
__This is the fourth appeal in this case. The opinions of the court on the two last appeals (81 Ala. 530, and 86 Ala. 407), taking a different view from that entertained when the case was first here (74 Ala. 604), established
When the case was before the court on the second appeal— 81 Ala. 530 — the claim and complaint of complainant were not alone that the two items of $2,000 and $5,012 were improperly charged against her, and included in her note of February 7, 1876. It was complained, also, that she had been charged usurious interest and excessive commissions, together with other improper charges. And these irregular and illegal dealings, it was charged, had pervaded the entire transaction during the entire term of five years, covered by the dealings of the parties. Considering the litigation as in effect bringing-before the court one continuous transaction, the attention of the court does not appear to have been directed to the assigning of particular items to any particular year of the account. Hence, in the opinion delivered on that appeal, after declaring that complainant had been improperly debited with the two items of $2,000 and $5,012, with interest, and with certain other charges “from the beginning,” which were declared to be illegal, the following language was employed: “There is some testimony that some part of the product of the crops grown on the Shorter place in 1875 went to Miss Micou’s credit with Moses Brothers, or to her advantage, in the continued cultivation of the plantation after that time. If such was the case, the credit of $5,012, deficit of the Boykin crop, must be reduced to that extent.” On the third appeal, 86 Ala. 407, the same principle was re-asserted.
Pursuing the letter of these opinions, the register, in stating the account which is before us on this appeal, did deduct from the credits certain sums, and among thenr several hundred dollars, the proceeds of the- oats grown on the Shorter place in 1875, -whicli he found had gone in 1876 to the use of Miss Micou, in cultivating- the said plantations. This part of the
If the account, commencing in the Spring of 1875, and running through several years, had been reported on by the register as one continuous transaction, it would seem that the only injury done Miss Micou by charging her with the proceeds of the oats as a deduction from the amount of the Shorter place deficit, which the court had ordered to be stricken from her accounts, would have been the item of interest, if any was allowed. The account, however, was not stated as a continuous transaction.
In stating the account, after the last appeal to this court, only the items constituting the account of 1875, and extending up to the giving of the note, February 7,1876, were considered, and surcharged and falsified. Under the judgments of this court, as then rendered, it was conceded by counsel that the products of the plantations in 1876 and other late years had paid to Moses Bros, all they had charged against Miss Micou, for advances for several years, and the accounts of those years were not reported. Thus stating the account, and confining it to the dealings of 1875, the charge for the proceeds of the oats used by Miss Micou, or on the plantations cultivated in her name, was improper; and such items should not have been deducted from the $5,012 ordered to be stricken from her account for 1875.
The oats were placed with merchants to be sold, and the proceeds were at the disposal of Moses-Brothers. They had a lien on them to the extent of $5,012, Micou’s deficit on the Shorter place for 1875. The money when received for the oats belonged to Moses Bros., but was a credit or partial payment on the B. H. Micou deficit of $5,012. It was not rightfully a credit to Miss Micou in 1876, or on any other account she owed. It was simply so much money advanced by Moses Bros.
So, in stating the account for 1876 under this modified decree, should such stateinent be attempted, Miss Micou will be chargeable with all proper advances made by or through Moses Bros., whether such advances were paid for with the jn’oceeds of the oats, or with any moneys furnished by them. And she will be entitled to no credits for the proceeds of the oats, for the obvious reason that, being in effect the property of Moses Bros, to the extent of $5,012, their only proper place is as a credit on that individual liability of B. H. Micou.
In the event the account of 1876 is considered and reported on, and in the further event it be shown that any of the oats
It results from what we have said that the account of that year, if desired, maybe re-opened, and charged with the value of such of the Shorter place supplies as Moses Bros, had a lien on to secure the Boykin debt, and not in excess of the sum actually due on the debt at the time of the advancement. If, with this addition, the liability of Miss Micou for 1876 for advances covered by the terms of her engagement overbalances the payments made thereon, the difference will be decreed to-Moses Bros., and carried back to reduce any balance that may be found against them on the dealings of 1875. And if, on the othér hand, the payments for 1876 are greater than Miss Micou’s liability, increased by this addition to it, such balance will enure to her credit and benefit on the account of 1875. This, because the mortgage of February 7, 1876, secures not-only legitimate advances to be made for the year 1876, but goes further, and secui’es “any indebtedness that may be due” Moses Bros. The crops of 1876 were mortgaged to pay whatever Miss Micou owed on the operations of 1875, as well as the liability she might incur in the year 1876 ; and the crops of the latter year are equally pledged to each liability. Her right to have them thus applied can not be taken from her without her consent.
The account for other years than 1875 may, if desired, be opened; and this conclusion leaves for our consideration the dealings of the year 1875.
The bill of complaint is not one to avoid liability in toio on the obligations entered into by complainant’s intestate to Moses Bros. Its sole purpose is to surcharge and falsify their account against her, and, as an incident to this end, it is sought to impeach the note and mortgage by which the account was closed, and the judgment for the amount so admitted to be due and agreed to be secured and paid. It was entirely competent for the original complainant, though under the disability of coverture at the time of her filing the bill, to carve out the relief for which she prayed, and by her pleadings confess herself bound in matters, and to an extent from,, which she might ■have had relief upon appropriate averment supported by proof. It was at her election whether she would ask to be relieved, from all liability, or from all liability in excess of the ■
The only item which, in our opinion, was erroneously
The decree is reversed on each appeal, and it is here ordered- and decreed, as of the date of the submission of this cause,, that the register of the Chancery Court take and state an account between the parties in accordance with this opinion, and report his action under this reference to the next term of said Chancery Court; and for further proceedings in that behalf the case is remandéd. Appellees will pay the costs of the respective appeals.
Reversed and remanded.