Pinkard v. Ingersoll

12 Ala. 441 | Ala. | 1847

GOLDTHWAITE, J.

1. As to the question of interest, between the several parties entitled to payment out of the fund, to be produced by the sale of the property in this cause, we think cannot arise.

The agreement which forms the basis of the decree, ascertains that each is entitled to a specified sum, and the creditors are marshalled in the order in which the sum allotted to them is to be paid. It is evident if these sums could be increased by any extraneous circumstances, the agreement can not be carried into effect. Now, if as between these parties, one was culpable, and others innocent of any thing tending to delay distribution, there might be some reason for the infliction of interest. But here’every one of the creditors- are in the same condition; they all seem to have refused to be governed by the mutual agreement between ^themselves and the common debtor, und each has fallen back upon; and asserted his pre-existing rights. It is only upon the exhibition of the cross bill of the debtor that the precise equities of all the parties are ascertained. It is impossible that justice can be done without carrying out that agreement now, in the same manner as it should have been carried out when first made. We have no adjudications arising on similar facts, to guide us, but the analogies all tend to show that when a fund is divisible, first to one and then to another, and afterwards to others still behind, that the sums allotted to each cannot be disturbed, without entirely changing the results. The accumulation of interest since 1842, would increase each demand nearly one-half, and if allowed, the obvious consequence is, that all the creditors after the first, may be, and the common debtor must be injured. It is said interest is not payable on the purchase money of land, if the payment or tender is prevented by the act of the vendee. [1 Marsh. 161.] So likewise, if he refuse to accept it when tendered. [January v. Martin, 1 Bibb, 586.] And when a fund insufficient te pay creditors, and unproductive of profits, is to be divided, interest should be allowed on the respective claims, only until the proceeds come into the hands of the commissioners. [Anderson v. Anderson, 1 H. & M. 11; see also 3 Paige 400.]

Applying these principles to the case before us, each one of the creditors, by refusing or neglecting to carry out the agreement of 1842, with the debtor, may be considered as refusing to accept the benefit of the property then appropriated; and that property must now be considered as the fund to which they are entitled.

2. Upon the question of costs, we can perceive no reason why the complainant should be charged with them beyond the other creditors. All stand in the same condition precisely, so far as either is in default. But although thus to be considered with respect to their attempt to evade the agreement between themselves and the common debtor, it cannot be questioned there was a sufficient ground for either to resort to the court for its aid. We think the costs should be paid as directed by the decree formerly pronounced.

For the error of the chancellor in allowing interest on the several claims supposed to have accrued since the agreement of February, 1842, the decree must be reversed and the cause remanded; and the chancellor will' then adjudge the costs as indicated in the former decree in this court.

Decree reversed, at the cost of all the defendants in error, except Ingersoll, and the cause remanded.