19 Ala. 698 | Ala. | 1851
The complainant’s bill in this case alleges 1 substance that in November, 1845, the Branch of the Bank f the State of Alabama recotered two judgments* one against he complainant, and the other ¿gainst the defendant Barney md one W. C„ Stanley, on a note made by complainant and Barney as principals, and said Stanley as their surety ; that by an agreement made between said Skinner and Barney on the 27th March* 1846, Barney undertook* for' a valuable considera-1 tion, to pay said judgments.
The bill alleges that Barney paid the amount due on the judgment to the b&nk, but in so doing ho resorted to an artifice* the object of which was to violate his agreement and eoropel the complainant to pay the judgment 5 that he caused an assignment of the judgment to the defendant Fuller, the broker front whom he borrowed the money to pay it; that Barney agreed with Fuller that he should lend Barney the money necessary to pay the judgment* which lo&n was to be repaid, witli such rate of interest or commission as they agreed on, at a Certain deferred period; that Barney induced Fuller to procure a transfer of the judgments, apparently as security to himself, and as a parchase as to complainant, but that in reality it was a payment of the judgment to the bank, made by the procurement and for the use of Barney; that Fuller holds said transfer for the use of, and under the control of Barney, and uses the judgment against complainant as Barney directs, and that they were then pressing the complainant with an execution issued on the judgment. The complainant asks specifically that the judgment be decreed to be satisfied and perpetually enjoined* and for general relief, &e.
Barney Controverts the alleged undertaking on his part to pay said judgment, and the answers of Barney and Fuller fully deny all the complainant’s allegations as to the payment of the judgment, or that the transaction with the bank was other than a purchase by Fuller* in good faith, of the judgments. In these denials the answers are responsive to the bill* are sustained by •che testimony of Lewis* and not impaired by that, of Wilson.
This view of the case mates it unnecessary to examine and decide whether Barney w$s bound by agreement to pay the judgment, as alleged in the bill. Admitting that Barney was so bound, can a court of equity be asked to interfere with the rights of Fuller as a creditor, and control him in the mode of collecting his judgment ? Wo have been unable to find any authority for such an interference. Even in the case of a proper suretyship, the general rule is, that a court of chancery will not compel a creditor to proceed against the principal debtor before he resorts to 'the surety.—3 Ala, 728; 6 Ves. 714, The hill in this case was evidently not framed for such a purpose, Tire relief sought ?or ip the hill is based on the allegation that Fuller is not the owner of the judgment, and relief cannot now be given, necessarily founded on the fact that FuUer is the owner of the judgment. The principle is well settled that relief can only be granted on a state of facts substantially corresponding with the allegations of the bill. — Reavis5 Dig. 2G3, and the cases there cited? 13 Ala. 681. The relief asked against Fuller in the character of a judgment creditor of Skinner and Barney is based on a fact directly opposed to the allegations of the bill.
Let the decree be affirmed,
