Rushton v. Davis, 127 Ala. 279

Rushton v. Davis

127 Ala. 279

Ala.

1899

Check Treatment

PER CURIAM. — Mоtions are made in this court to set aside the submissions of these causes, and thereupon to set a-side and vacate the order made in each of them on the 8th day of June, 1899, establishing bills of exceptions on the ground that said orders were procured to be made and entered'by fraud. From the reportеr’s statement of the case presented on the motions it will appear that an agreed statement of facts upon which both of the cases wеre tried in the circuit court was materially altered 'after the trial, and as altered was inserted in the bills of exceptions proposed to be es*287tаblished, and upon the motion to establish them was sworn to be the correct agreed statement of facts upon which the cases were tried, that counsel for appellees, assuming that the true statement, of facts would be correctly copied into the bill of exceptions, omitted to examine them, and did not discover the alterations until after orders had passed establishing the bills, and submitting the causes; indeed not until after the close of the term of this court at which such orders were made. If these matters had been brought- to our attention during the term of the court at which the orders were entered, we should not hаve hesitated, assuming the facts set up in the present motions to be true, to set aside and vacate the orders. But the fraud complained of is not of suсh character as will warrant that action-at a subsequent term: It is fraud in the 'fabrication of the evidence adduced in support of the motions to estаblish the bills of exceptions, and not fraud in the procuring the making of the orders — as, for instance, fraudulently preventing opposition to- their entry, falsely assuming to represent the ■ appellees on the motion, falsely asserting notice to them of the motions, and the like. It is fraud of this latter character — in procuring the action of the court as distinguished from fraud and perjury in the evidence offered — that will ■authorize the court at a subsequent term to annul and vacate its- judgments. And it is upon -this grоund-— that the fraud complained of is not such as can be reached by the court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍after the adjournment of the term at which the orders were made — that wе overrule and •deny the motions now made by the appellees.

HARALSON, J.

It appears from the agreed statement of facte in these cases, that Mrs. Peterson, who was formerly Mrs. Davis, executed a mortgage to the American Mortgage Company of Scotland, Limited, of Edinburgh, Scotland, upon her lands, in which it was provided in express terms “if any surplus shall remain the same shall be paid over to the party of the first part’’ (Mrs. F. E. Davis). After the execution of this mortgage, and before its foreclosure under the power of sale contained in it, Mrs. Peterson, and her husband, *288R. S. Peterson, executed an instrument in writing purporting to be a deed frоm F. E. Peterson to W. H. Davis, O. II. Datos, M. E. Davis and J. C. Davis, the plaintiffs in the suit against Rushton, and the claimants in the garnishment suit of Shows against Rush-ton, Davis and others, claimants. The agreed statement of facts also shows, that- Rushton had in his possession, as agent for the Mortgage Company, the sum of money here in controversy as a balancе after paying 'and discharging the debt of Mrs. Davis to the Mortgage Company. Shows claims the money under his process of garnishment as the money of his debtor, Mrs. Davis. The Davises claim it by virtue of the assignment of it under the instrument to them executed by their mother, Mrs. Davis.

It is- well understood that a • debt or demand for which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the owner cannot maintain an action of debt or indebitatus assumpsit in his own name, cannot be reached and condemned by garnishment. at the suit of a 'creditor. — Nat. Com. B. v. Miller, 77 Ala. 168; Craft v. Summersell, 93 Ala. 430. So far as the garnishment proceeding is concerned, unless Mrs. Davis is the owner; both legal and equitable, the money cannot be condemned .a-s hers as against the claimants. In other Avords, if the clаimants have the equitable title to the money, or are the beneficial OAvners of it as betAveen them and the garnishee, the garnishment proceedings must fail. Sо, too, in the contest betAveen the Davises and Rush-ton, the action brought by them being an action for money had and received, if they are the equitable OAvners of the money, they are entitled to recoA^er it.

T'n speaking of the action of assumpsit for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍money had and received, this court said in King v. Martin, 67 Ala. 177: “This action, in its spirit and purposes, has been likened to a bill in equity, and is an exceedingly liberal action, and Avill ahvays lie where a defendant 'has in his hands money which, ex equo et bono, he ought to refund to the plaintiff.” And in Planters & Merchants Bank v. Tunstall, 72 Ala. 142, it avus said : “The money received by the appellant in satisfaction. *289of tlie note, was the money of the appellee, in whom the equitable title to the notе resided. An action for money had and received is an equitable ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍remedy, and may be supported when the defendant has received money which, in good conscience, he ought not to retain, and which, ex equo et bono, belongs to the plaintiff.”

This brings us to a consideration of the legal effect of the instrument purporting to be a deed executed by F. E, Peterson and her husband to W. H. Davis and others. It may be conceded, and is, for that matter, beyond the pale of controversy, that as a conveyance of the legal title to the land, it is inoperative, for the obvious reason that tlie name of It. S. Peterson, the husband, does not appear as a grantor in the body of the instrument. — Davidson v. Cox, 112 Ala. 510; Johnson v. Goff, 116 Ala. 648. For the same reason it may be said that it did not assign or transfer the legal title to this money. But is it not a good contract to convey? If it is, thеn unquestionably the grantees in the instrument, purporting to be made for a valuable consideration, could enforce the specific performance of it in a court of equity. This being true, of necessity the grantees named in the instrument acquired an equitable title to the land, and an equitable assignment of the money.

In Murphy v. Green, 120 Ala. 112, in the deed made by 'Mary E. Travis to Green, the name óf Mary E. Travis alone appeared as a grantor in the body of tlie deed, and it was signed by her and attested by two witnesses. After her signature there appeared this statement: “This is to certify that the above grantor is my wife, and that she has 1113'' unqualified permission to make above grant and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sale of the above named lands. This 15th day of July, 1892. (Signed.) J. 0. Travis.” The court, through Justice McOdiodlan, said: “The original deed from Mrs. Travis to complainаnt [Green], though void as a conveyance, was valid‘as a contract to convey, having been signed by her with the assent and concurrence ;of her husband thereon expressed in writing.”

The instrument in this case is unlike the one in the Murphy case, in that the name of Peterson is simply *290signed, under tlie name of liis wife and acknowledged by him as one of the grantors in tlie conveyance, no writing appearing upon it 'Signed by- him, expressing his assent or concurrence to her executing it. But this is a matter of no consequence. The mere signing by Peterson of the deed was sufficient compliance with sections 2346, 2348, Code of’1886. As. said-in Sheldon v. Carter, 80 Ala. 380: “Signing the note and mortgаge with his wife was a full compliance with the statute by Sheldon,' the husband. It was certainly a written expression of his concurrence:” Under those .provisions of the Code the-wife had.full capacity to contract in wr ting as if she were a feme'sole, with the assent or ■concurrence of the husband expressed in writing. -The singning of the deеd by Peterson, the husband, was an expression by him of- his assent in writing' in order to make it a valid contract to convey the lands to the Davises. Being a valid contraсt to convey, the.grantees in the instrument acquired an equitable title to the land and at least were, the beneficial owners of the money, and are thеrefore entitled to recover it in their action against Rushton,-- and to defeat the garnishee ■in his attempt to subject it as the property .of his debtor, Mrs. Davis.

The judgment in both of these cases must be affirmed.