34 Ala. 565 | Ala. | 1859
Section 2144 of the Code reads as follows: “A defendant, against whom an action is pending upon any contract for the payment of money, may, at any time before issue joined, make affidavit in writing, that a person not a party to the action, and without collusion with him, claims the money in controversy, and deposit the money iu court, praying an order that the person so claim1 ing the money be substituted in Ms place. The court must thereupon direct notice to be given to the claimant of the money and the plaintiff, and may, in'its discretion, after such notice has been served, make the order prayed for; and thereupon the substituted defendant stands in the place of the original defendant, and the latter is discharged from liability.”
For appellee it is contended, that inasmuch as the sum of money which is the subject of this suit is the proceeds of cotton which Mr. Goree, in liis life-time, had consigned to Messrs. Marrast & Lee, as his commission-merchants, and the money.was in the hands of said commision-mer-chants as the agents of Mr. Goree, that the substituted
This record nowhere discloses that the plaintiff interposed any objection in the court below to the substitution of Mr. Nelson for Messrs. Marrast & Lee, as defendant in this case. No exception was taken to the action of the court, which resulted in the dismissal from the record of the former defendants, and the formation of a new issue or suit, between Mr. Goree’s administrator as plaintiff, and Mr. Nelson, as administrator of Mrs. Goree, and as guardian of the infant, Caroline N. Goree, as defendant. After this change of parties had taken place, the parties submitted their cause upon an agreed statement of facts, and a judgment was rendered by the circuit court. The record does not iuform us upon what ground the judgment of the circuit court was rendered. "We propose, in the first place, to construe the section of the Code above copied, and to define, so far as the wants of this case render it necessary, the practice to be pursued under said section.
Our labors in this connection are.much alleviated by the fact, that wo are not pionéers in an unexplored region. In the State of New York there is a statute, of which ours, so far as the question in this cause is- concerned, is almost a literal copy. Its language is as follows :
“ § 122. A defendant, against whom an action is pending upon a contract, or for specific real or personal property, may, at any time before answer, upon affidavit that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person' and the adverse party, apply to. the court for an order to. substitute such person in his, plaee, and discharge him from liability to either party, on. Ms depositing in court the amount of the debt, or delivering, the property or its value to such person as the court may directand the court may,, ip. its,*575 discretion, make the order.” — Voorhies’ New York Code, (5th ed.) 93 ; Willard’s Eq. 315.
In the case of Sherman v. Partridge, 11 How. Pr. Rep. 154, Justice Duer, in delivering the opinion of the court, said : “ The provisions in section .122 of the Code are founded upon the English statutes, 1st and 2d Will. IV, ch. 58.” We have not access to the English statute, and hence must rely on the reference in Judge Duer’s opinion for its contents.
In the case of Sherman v. Partridge, 11 How. Pr. Rep. 154, (S. C., 1 Abbott’s Pr. Rep. 256,) the plaintiffs brought suit against defendants, and alleged that one Searle had sold logwood to the defendants, at the price and value of five hundred dollars; and that Searle, for a valuable consideration, had assigned and transferred to plaintiffs his said claim against defendants; and that in consideration of said assignment, the defendants had expressly promised to pay the plaintiffs the amount they owed Searle. One of the defendants submitted an affidavit, stating that one Delafiekl, a person not a party to the action, and' without collusion with the defendants, demanded of them the proceeds of the logwood, alleging that it belonged to him, and that Searle had not the possession as owner, nor any right or authority to sell the same or assign the price thereof. The motion was, to discharge the defendants, and to substitute Delafield in their stead.
On the trial of the motion, it appeared that the defendants had received the logwood from Searle; and that Searle, afterwards, for a valuable consideration, had transferred the claim to plaintiffs, and that defendants had promised the plaintiffs to pay them. The court overruled the motiou to substitute, saying, among other things, “ An order of interpleader, under section 122 of the Code-, can only be properly made where the whole controversy turns upon the right of property — that is, upon the question whether the plaintiff in the suit, or the claimant whose substitution as the defendant is desired, is the true owner of the debt, fund, or other property for which judgment is demanded. When the plaintiff insists, as in the present ease, that the defendant, by a personal contract or other
The English statute of 1st and 2d "William IV., ch. 58, has been frequently construed; and the opinions of the English judges fully sustain those copied above from the opinion of Judge Duer. — See Lindsey v. Barron, 6 Man., Gr. & Scott, (60 Eng. Com. Law,) 291; Palonic v. Campbell, 2 Dowl. N. S. 397 ; Slaney v. Sidney, 14 Mees. & Wels. 800; also, Chamberlain v. O’Connor, 8 Howard’s Prac. 45.
The authorities place the practice under the inter-pleader statutes in England and New York on the same principles as those which govern that remedy in equity. In Willard’s Equity, pp. 318, et seq., this subject is treated in connection with the New York statute ; and it is obviously the opinion of that writer, that the statute, while it is in some respects less comprehensive than the remedy
As to the eighteen bales of cotton received and sold by Marrast & Lee after the death of Mr. Goree, probably a different rule prevails. Those bales remained in kind, and unchanged in the hands of the bailees, until after the appointment of Mr. Walthall as administrator of Mr. Goree, and the appointment of Mr. Nelson as administrator of Mrs. Goree, and as guardian for the infant. It was then sold by Marrast & Lee, by consent of both said Wal-thall and said Nelson. In this, probably Messrs. Marrast & Lee could not with propriety be styled the agents or factors of the intestate, Mr. Goree, or of his administrator, Mr. Walthall. They were acting under the joint authority of both Walthall and Nelson. In Pearson v. Garden, 2 Russ. & Myl. 606, it was said, that when goods in the hands of a bailee have been subsequently so treated and dealt with by the bailor, as to constitute or acknowledge an apparent title to them in two distinct parties, the rule which prevents an agent from filing a bill of interpleader against his principal does not apply.
In the present case, it seems to us that, as to the proceeds of the eighteen bales of cotton, Messrs. Marrast & Lee, under the agreement of Messrs. Walthall and Nelson, filled much more nearly the relation of stakeholder to both, than of agent to either representative. But we need not decide this question.
It being shown above that, as to a part of the money in the hands of Messrs. Marrast & Lee, they were not in condition to call on their principal to interplead; and the entire sum being sued for in one action, it was not
After the defendant was changed, the parties, by entering into an agreement with each other, forming an issue, and engaging in the trial of the cause; and this without objection by the plaintiff to the previous action of the court, must be regarded and treated as submitting their several claims on the fund to the relative strength of the titles they represented. — Bryan v. Wilson, 27 Ala. 208 ; Byrd v. McDaniel, 26 Ala. 582; Gager v. Gordon, 29 Ala. 341.
It is, then, our duty to determine the relative strength of the plaintiff’s and defendant’s titles.
The entire real and personal property, of which the cottou in controversy is part of the product, was acquired under contracts executed in Alabama, by parties resident in Alabama, after the intermarriage of Mr. and Mrs. Goree, and after the “ woman’s law ” became operative. Mr. and Mrs. Goree were citizens of Alabama when the deeds were made, and continued so until their several
The two deeds of September 8, 1854, from the older Nelson to Mrs. Goree, conveyed property, real and personal, to her sole and separate use during her life,'and at her death, to such child or children as'she should leave surviving her. The- deed of July 21st, 1855, from the youngerNelsontoMrs. Goree,is expressed in general words of sale, without words of exclusion. Under the deeds from the elder Nelson, Mrs. Goree acquired the east half of section 23, township 12, range 6, 320 acres, and an undivided two-thirds of section 17, same township and range; also, an undivided two-thirds of the negro property. Under the deed from the younger Nelson, she acquired the remaining third of section.17, ánd of the slave property. The land is in the State of Mississippi, and the slaves were also there when they were acquired ; and were still there at the death of Mr. Goree, in January, 1858. The cotton sold by Messrs. Marrast & Lee was grown on said lands, by the labor of said slaves. Mr. Goree was in control of said property until his death ; but neither he nor any one else had been appointed administrator of Mrs. Goree, or guardian of the infant.
Another embarrassment is thrown over this question, by the circumstance that loe limit the operation of all our statutes in relation to the separate estates of married women to such estates as are made separate by law, while wo can not shut our eyes to the fact that with them the rule seems to be different. — See Pickens v. Oliver, 29 Ala. 528; Smith v. Smith, 30 Ala. 642; Willis v. Cadenhead, 28 Ala. 472.
A still further obstacle is encountered in the conflict observable in their reported cases. We confess a decided preference for the conclusions attained in the cases of Marshall v. Xing, 24 Miss. 85 ; Lyon v. Knott, 26 ib. 548; Rabb v. Griffin, ib. 579, over that announced in the later case of Cameron v. Cameron, 29 Miss. 112, and apparently recognized in Bates v. Cotton, 32 Miss. 266.
Under the laws of Alabama, at the death of Mrs. Caroline M. Goree, an interest equal to two-thirds of the slaves passed directly, and without administration, to the infant, Caroline N. Goree, under the deed of the elder
We stated above that the rights of these parties must depend on the relative strength of the two titles. It follows that, to maintain this action, it rests with the plaintiff to show a better title at law to the money in the estate of Mr. Goree, than there is in the estate of Mrs. Goree, and in the minor. The question thus stated is easily answered, without asserting to the extent of some of the cases cited above the doctrine of confusion of property or goods. Conceding, for the purposes of this argument, that Mr. Goree was tenant by the curtesy of the entire tract of land during the year 1857, when the cotton was grown, it is nowhere shown that Mr. Goree has not already received and enjoyed his full share of the crop of that year. This, if the rule of confusion of goods be applicable, would forbid that the present suit should be maintained.
There is another principle, however, sufficiently comprehensive for the purposes of this case, and which, we think, is decisive of the plaintiff’s right to recover in this action. Waiving, for the present, all consideration of the want of authority in Mr. Goree to employ these slaves in the cultivation of his own lands — even if we place the question on the doctrine of part-ownership, or tenancy in common, it does not appear that the estate of Mr. Goree has not received its full proportion of the money for which the cotton was sold. Thus considered, Mr. Goree has received and used near $3,000 of the money, while Mr. Nelson, in his double representative capacity, can receive by this suit less than $2,000. It should be
The reasons which influence us in withholding an expression of opinion on this question of confusion of goods, are partly stated above — namely, our inability, in the state of this Record, to determine satisfactorily the extent of Mr. Goree’s curtesy iu the lands. To this we may add, that there will probably be other differences of opinion and of claim between these parties, growing out of the cotton crop of 1857. Should such contest arise, a fuller statement of the facts, as well as the laws of Mississippi as understood and expounded in their jurisprudence, will probably bo brought before the court trying the questions.
It results from what we have said above, that the judgment of the circuit court is reversed, and the cause remanded.