Orman v. North Alabama Development Co.

53 F. 469 | U.S. Circuit Court for the District of Northern Alabama | 1892

BRUCE, District Judge,

(after stating the facts.) There are two points, only, which seem to require remark on the disposition of the motion in this cause. This action is upon a written contract or assumption of payment of a mortgage by a grantee in a deed of real estate. The complaint has in it also the common counts, one of which is for money had and received by the defendant for the use of the plaintiff.

It is said to be a rudimentary principle that a party may sue on a promise made, on a sufficient consideration, for his usé and benefit, though it be made to another, and not to himself. There can be no question here as to the consideration; for that was a part of the purchase money of land sold and conveyed to the defendant development company, which it, by the acceptance of the deed, obligated itself to pay, and the bringing of the suit by the plaintiff brought the parties into privity, if it may be said there was no privity of contract existing before that time. Now, can such a suit be maintained, under the law of Alabama? It is said in Insurance Co. v. Tunstall, 72 Ala. 142, that assumpsit for money had and received is essentially an equitable action; and in King v. Martin, 67 Ala. 182, the court says:

“This action, wbicli was an action in assumpsit for money bad and received, in its spirit and purpose, is likened to a bill in equity, and is an exceedingly liberal action, and will always lie, where a defendant lias in bis bands money which, ex aequo et bono, be ought to refimd to plaintiff.”

It may be said, and is argued, that this is one of the exceptions to the rule pointed out by the supreme court of the United States in the case of Keller v. Ashford, 133 U. S. 621, 10 Sup. Ct. Rep. 494; but it seems to me the rule itself has been relaxed in Alabama, so that this ■ suit may be maintained.

That the defendant company is estopped from denying the validity of the debt sued on, seems clear , Pratt v. Nixon, 91 Ala. 192, 8 South. Rep. 751, and authorities there cited. And the defendant does not take issue on this proposition, bat contends that under the law of Alabama the plaintiff’s right to sue, in a case like this, is in equity, only, and not at law. His proposilion is that there are or may be equities to settle between the plum! iff, Orman, and Parrish, the mortgagor, which can only be done in a court of equity; that the contract sued on is to pay Parrish’s notes to Orman; that these notes have in them a condition—

“That, should said lands have to be sold under the mortgage, then I am only liable under this note to the amount of the proceeds of such sale, and no more.’’

It is insisted that, this means that Parrish was not to he held personally liable for anything on these notes, but the property alone should stand for the unpaid purchase money. There may he a question whether Orman did not have the option to pursue his remedy upon the notes, and not seek a foreclosure of the mortgage; hut, however that may be, it is not correct to say that the defendant assumed the payment of Parrish’s debt, with all the conditions attached to it. The defendant assumed and obligated itself to pay the mortgage, which represented the unpaid purchase money due upon the laud; and, when it accepted the deed from Parrish, the debt it assumed became, and is, its debt and its obligation, not simply that of Parrish. True, the notes are set out in tbe complaint, hut the suit is not on the notes, and they merely servo to show the amount of the debt assumed by the defendant company.

On the question of the attachment, the cause seems to he within the provision of the attachment law, and the motion to dismiss the attachment is denied.