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[Walton Whaun & Co. v. Atkinson et al.]

reimburse his wife therefor. The gift of the money was valid against all persons except existing creditors of the husband, and was the wife's separate estate. By the conversion of the stock, in which the money was invested, the husband became indebted to his wife for the value of the stock at the time of its conversion.

The well settled doctrine in this State is, that a debtor, though in failing circumstances or insolvent, may sell the whole of his property in payment of an antecedent debt, to the exclusion of his other creditors, and that such sale, if the debt be bona fide, and its amount not materially less than the value of the property, will be sustained, if no use or benefit is reserved to the debtor.-Hodges & Bro. v. Coleman, 76 Ala. 103; Levy & Co. v. Williams, 79 Ala. 171. It is equally well settled, that if the husband converts the corpus of his wife's separate estate, either by using it for his own purposes, or investing it in property in his own name, he becomes indebted to her for the amount so used or converted, and may pay her by conveyance of property for that purpose, and if there be no material disparity between the liability and the value of the property conveyed, and no use or benefit is secured to the husband, equity will uphold the conveyance and protect her rights against the other creditors of the husband.-Northington v. Faber, 52 Ala. 45; Vincent v. State, 74 Ala. 274.

We concur in the conclusion of the chancellor as to the value of the stock at the time of conversion. The complainants introduced no evidence as to the value of the property conveyed. It was estimated in the sale to the wife at thirtyfive hundred dollars. The evidence on the part of the defendant shows, that this was about its value. The bona fides

of the debt being established, and it being shown that the value of the property conveyed is not materially greater than the debt, and no secret benefit was reserved, the conveyance must be sustained as against complainants.

Affirmed.

VOL. LXXXIV

Lyon et al. v. Dees.]

Lyon et al. v. Dees.

Bill in Equity to set aside Execution Sale of Lands.

1. Mortgage and judgment for same debt.-A judgment being assigned to a third person, as security for money advanced by him, at the request of the defendant, on settlement with the judgment creditor, and a mortgage afterwards given for the same debt with another debt, the assignee can enforce both the judgment and the mortgage; and though a subsequent revivor of the judgment, by consent, in the name of the assignee, may conclusively show that the debt was not then satisfied in full, it does not authorize him to so enforce both for the payment of the money due him as that he shall have double payment of the same debt.

2. Plea good in part.--A plea in bar of the whole bill, which is good as to part only, is properly overruled.

APPEAL from Choctaw Chancery Court.

Heard before Hon. THOMAS W. COLEMAN.

The appellee, Willoughby J. Dees, filed this bill against Joseph M. and Mary J. Lyon, and Calvin Dees, and sought to set aside an execution sale of certain lands, made January 15th, 1885, under a certain judgment recovered in the Circuit Court of Choctaw county on the 29th of April, 1880, by one Ward against Calvin Dees and appellee, Willoughby Dees, in the sum of $482.70 and costs, and by said Ward assigned to appellant, J. M. Lyon, some time in 1881, and revived by said Circuit Court October 22, 1884, in the name of said Lyon as such assignee. The bill further sought to have said revived judgment declared to be satisfied and paid in full and to restrain the further issuance of execution thereunder; also to be let into possession of the land bought by said J. M. Lyon at said execution sale, and to cancel the sheriff's deed to said Lyon. There was a demurrer to this bill, which demurrer was sustained. Thereupon complainant amended his bill.

To the amended bill appellants filed a plea in bar, setting up a revival of the said judgment obtained by Ward, in the name of said J. M. Lyon, and that said judgment was so revived by the consent of said Calvin Dees and Willoughby Dees, appellee. A demurrer to this plea was sustained by the chancellor, which action is here assigned as error.

TAYLOR & ELMORE, for appellants,

84 595 101 702

Lyon et al. v. Dees.]

GLOVER & CARNATHAN, and T. N. MCCLELLAN, contra.

CLOPTON, J.-The assignment of error, in reference to the omission of the chancellor to dismiss the bill after having sustained a demurrer thereto, having been abandoned, the only question for consideration relates to the decree of the court overruling a plea, which sets up in bar of the bill the revival of the judgment, which Ward recovered April 29th, 1880, against the complainant and Calvin Dees. The bill alleges that the judgment was assigned to J. M. Lyon, one of the appellants, in 1881, as security for the sum of two hundred dollars paid by him to Ward at the request of complainant in settlement of the judgment, and that in March, 1882, a mortgage on real and personal property was executed to Lyon to secure the same debt, and also an additional sum then advanced to complainant, which he agreed to receive in substitution for the judgment, and that the judgment was hereby satisfied. The judgment was revived in October, 1884, by consent of complainant, and in January, 1885, real and personal property was levied on and sold under an execution, which Lyon procured to be issued on the revived judgment; and in June, 1885, the property conveyed by the mortgage was sold under a power of sale therein contained. The revived judgment is set up in bar of the bill. We shall regard, as the chancellor did, the demurrer to the plea, as a mode adopted by the parties for setting the plea for hearing in vacation under the rule of chancery practice.

On this appeal, a discussion of the equities of the parties, further than may be necessary to determine the sufficiency of the plea, will be premature, and we forbear to enter upon such consideration. The effect of the plea is, that the payment and satisfaction of the judgment at the time of its revival is res adjudicata, and that the revival precludes the complainant from asserting that it had been previously paid and satisfied. If this be conceded, the question still remains, whether there is any matter of equity in the bill to which the plea does not set up a bar. While the bill alleges that cotton of the value of two hundred and twenty-five dollars was paid on the mortgage debt in 1882, it does not allege that the judgment was thereby paid, but that it was discharged by the substitution of the mortgage in lieu thereof as security for the money paid Ward. In what manner and to what extent would disproof of this last allegation affect the relief to which complainant would be entitled. Assum

[Lyon et al. v. Dees.]

ing as true, that the debt, on account of the money paid Ward in settlement of the judgment, was included in the mortgage, complainants' case may be considered in two aspects whether the mortgage displaced the judgment as a security and thereby destroyed the right of Lyon to use it as such, or whether the mortgage was a cumulative and additional security for the debt-the nature and extent of the relief being dependent on which aspect is sustained by the proof. The judgment having been assigned to Lyon, as security for the sum advanced by him, it was his right to enforce its collection to the extent necessary to his reimbursement, but no further, unless this right is destroyed, or modified or restricted by the subsequent transaction. If the mortgage was in fact a substituted security intended to displace the judgment as such, its subsequent enforcement was inequitable; and if the mortgage was merely a cumulative security, Lyon could properly enforce either, or both, the judgment and mortgage, for the payment of the amount advanced by him to Ward, but not both so as to coerce a double payment of the same debt.

The equity of the bill does not rest solely on the mortgage having been accepted as security in lieu of the judgment. Whether the sum advanced to Ward was included in the mortgage, and the mortgage was substituted in lieu of the judgment as security therefor, may become material as affecting the right of Lyon to have an execution issued and property sold thereunder, and as affecting the equity of complainant to have the execution sale set aside. But, if the judgment and mortgage were operative securities for the same debt, and the mortgage was paid in 1882, except a small balance, which was paid by the sale of the personal property under the execution, the sale of the land thereunder, was unnecessary, excessive and oppressive, which sale a court of equity would set aside on allegation and proof, that the assignee of the judgment was really the purchaser of the land; and if such is the case, the subsequent sale of the property conveyed by the mortgage would be an oppressive and illegal exercise of the power of sale, for the abuse of which Lyon would be responsible to complainant. If the order of the court reviving the judgment were introduced as evidence, and disproved the allegation that it was satisfied, the right of complainant to relief would not necessarily be defeated; it would only affect the nature and extent of the relief. On the case made by the bill, a plea, setting up the

[Brunson et al. v. Morgan et al.]

As the

same matter, could have no other or greater effect. plea is in bar of the whole bill, and does not cover the whole case, by setting up a bar to all the matters of equity, it was properly set aside.-Piatt v. Oliver, 1 McLean, 295; 1 Dan. Ch. Pl. & Pr. 648.

Affirmed.

Brunson et al. v. Morgan et al.

Bill in Equity for Specific Performance.

1. Adverse possession, as between mortgagor and mortgagee.-The possession of the mortgagor, before the law-day, is not adverse to the mortgagee; especially where the mortgage contains an express stipulation, that, until the payment of the debt, he will hold the property as the tenant of the mortgagee, or of the trustee named in the mortgage.

2. Sale under power in mortgage.-A sale of lands under a power in a mortgage, the mortgagee becoming the purchaser, but receiving no deed from the trustee, cats off the equity of redemption equally with a decree of foreclosure in equity; and the validity of the sale not being impeached by the mortgagor within the time allowed by law, the mortgagee, or an assignee and purchaser claiming under him, may maintain a bill in equity to compel a divestiture of the legal title.

3. Lands belonging to partnership.-When lands are bought for partnership purposes, with partnership funds, are held as partnership property, and sold under a power in a mortgage executed in the partnership name, the purchaser is entitled to a divestiture of the legal title out of one of the partners who is in possession under the mortgage.

APPEAL from Pike Chancery Court.

Heard before Hon. THOS. W. COLEMAN.

This was a bill filed by the appellee, Sallie Morgan, M. L. Morgan, her husband, and Silas Brunson, against Matthew Brunson and C. S. Lee, and sought to have the title to a certain tract of land described in the bill divested out of the defendants and invested in the complainants. The facts as they appear in the record are sufficiently stated in the opinion of the court. The defendants demurred to the bill on the ground, among others, of misjoinder of parties defendant. The chancellor overruled said demurrer, and the defendant Brunson pleaded title to the land in controversy by adverse possession; while a decree pro confesso was taken against the defendant Lee. On final hearing, the chancellor decreed that the complainants should have the relief prayed for. The defendants appealed, and now assign the ruling of

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