26 Ala. 339 | Ala. | 1855
—The bill in this case was filed by the appellant, as administrator of Daniel Turney, deceased, for the purpose of enjoining the execution of a judgment at law, and to assert and establish a trust in favor of his intestate in certain slaves named in the bill, in which the defendant Morrow claimed the absolute property.
It appears from the record, that the slaves in controversy once belonged to Morrow, and were sold by the sheriff of
The decree is correct. The appellant’s intestate had no lien whatever on the slaves, and occupies no higher position with regard to them than any other simple contract creditor of Morrow. There is no trust raised in his favor, by the mere fact that Morrow used the money which he borrowed from the intestate in paying Burlerson the sum necessary to re-purchase the slaves. Nor is any trust in his favor created by the proposition or offer of Morrow to give him a lien on the slaves, to secure the re-payment of the sum loaned to him by Turney. Until this offer was agreed to by Turney, there was nothing to hinder Morrow from withdrawing it at any time he pleased ; and there is no proof which shows that the
The assignment of the bill of sale from the sheriff to Burler-son, by the latter to the intestate, conferred no right in the slaves on the assignee ; first, because at the time of the transfer the slaves were not in the possession of Burlerson ; and, secondly, because he had, before it was made, parted with all claim he ever had to them, by receiving the sum which, by his agreement with Morrow, the latter was to pay for their repurchase. As Morrow had the possession of the slaves at the time the money on the re-purchase was paid to Burlerson, that possession drew to it the title, so soon as the payment of the purchase money was completed, and Burlerson had nothing to convey.
The mere assignment of a paper title for personal property, when the property is in possession of another under such circumstances as are shown in this case, confers no right or claim, either in law or equity, on the assignee.
Upon the whole, this must be regarded as an effort of a simple contract creditor, without a lieh, to go into equity for the collection of his debt, which cannot be allowed.
Let the decree of the chancellor be affirmed, at the cost of the appellant in this court, and in the court below.