[Louisville Manufacturing Co. et al. v. Brown.] of suffering destruction of his estate, or irreparable injury thereto. There is not a shade of doubt, under the evidence, that if every yard of stone had been removed from his land, payment to him of the fair value thereof, in money, would have afforded ample and adequate redress. We have shown that such payment could have been enforced, and the title to the land settled in one action at law. There was, therefore, no necessity whatever for resorting to injunction. The maxim, "Nullum tempus occurit reipublicae," has no application to this case. It is true there can be no adverse possession of land which can ripen into title against the government; and the doctrine of maintenance does not apply against it. Those are questions which pertain to the trial of the title when jurisdiction for that purpose has been properly invoked. Here the complainant has sought the wrong forum. In an action at law he may have the benefit of those immunities, if entitled to them. Reversed and remanded. Louisville Manufacturing Co. et al. v. Brown. Bill in Equity by Assignee to have the Trust under a Deed of 1. Right of assignee to invoke jurisdiction of equity for the administration of the trust.—When, after the execution of a deed of assignment by an insolvent debtor for the benefit of all his creditors, the lessor of the debtor sues out a writ of attachment and has it levied upon a portion of the property conveyed in said deed, the assignee named in the deed may invoke the aid of equity to administer the trust created thereby. 2. Right of court of equity to order sale of property assigned.-After a court of chancery has taken jurisdiction of the trust created by deed of assignment, it has the power to order a sale of the property assigned in said deed and such power extends over a leasehold interest in a store, which was conveyed in the deed of assignment, as well as to the other property assigned. 3. Right of creditors to be made parties defendant by petition to a sui [Louisville Manufacturing Co. et al. v. Brown.] by assignee.-Creditors of an insolvent debtor can not be made parties defendant, by their own petition, to a suit by the assignee in a deed of assignment made by an insolvent debtor for the benefit of his creditors; but being beneficiaries of the trust created by said deed, they may intervene by petition to have their interest ascertained and their rights protected. 4. Decree before cause at issue erroneous.-When, to a bill filed by the assignee of an insolvent debtor, which avers the levy of an attachment by the debtor's lessor and admits the justness of a claim for rent thus asserted, there have been no answers filed, and no decrees pro confesso have been rendered against the defendants not answering, the cause is not at issue; and an order of reference to ascertain the amount due the attaching lessor, and a decree that the amount so ascertained be paid is erroneous when rendered before the cause was at issue, and before the creditors of the assignor had an opportunity of presenting and proving their claims. 5. Decree to support an appeal.-A decree that settles matters of contention and the material equities in a cause will support an appeal. 6. Same-An appeal lies from a decree in a suit by an assignee named in the deed of assignment for the execution of the trust, in which the debt is ascertained and ordered to be paid out of the proceeds of the assets, without giving creditors an opportunity to contest such debt, or to present and prove their claims. 7. Right of intervening creditors to appeal.-Creditors who have intervened by petition, to have their interest ascertained and rights protected, in a suit by the assignee of an insolvent debtor, may take an appeal from a decree which orders to be paid to the lessor of the debtor the amount ascertained to be due, when such decrce is made without giving the intervening creditors an opportunity to contest such debt, or to present and prove their own claims. 8. When appeal not taken in the name of all the defendants; not dismissed upon objection raised in argument.-When an appeal is taken by intervening creditors, not in the name of all the defendants, and without a severance, and the cause is submitted without objection on assignments of error by the appellant, the objection that the appeal was not taken by all the defendants comes too late when suggested in argument. APPEAL from the Chancery Court of Jefferson. The bill in this case was filed by the appellee, S. Brown, as assignee, to have the chancery court take jurisdiction of, and administer, a trust created by a deed of assignment. On January 20th, 1892, I. Phillips & Bro. made a general assignment for the benefit of their creditors to S. [Louisville Manufacturing Co. et al. v. Brown.] Brown, the appellee, and complainant in this suit. In said deed of assignment the assignors transferred all of their stock of merchandise and also their leasehold interest in storehouses Nos. 1816 and 1818, 2d Avenue, in the city of Birmingham, then occupied by them. The said storehouses, the leasehold interest in which had been conveyed in the deed of assignment, had been leased by I. Phillips & Bro. for a term of years from Mrs. L. L. Molton. The said lease contained the following provision: "Should the party of the first part (I Phillips & Bro.) fail to pay the rents as they become due, as aforesaid, or violate any other condition of this lease, the said party of the second part (Mrs. L. L. Molton) shall then have the right, at her option, to re-enter the premises and annul this lease." As soon as the assignment was made, Mrs. L. L. Molton, the landlord, sued out an attachment to recover the rent for the entire term, and the writ was levied upon the stock of goods conveyed to Brown in the deed of assignment. On January 29, 1892, after the levy of said writ of attachment, S. Brown, as assignee, filed the present bill of complaint against I. Phillips & Bro., L. L. Molton, and A. Dreher, one of the creditors of I. Phillips & Bro., and prayed to have the chancery court to take jurisdiction of the trust and trust estate created by the deed of assignment, and administer the same under the orders and directions of said court; that the goods levied upon by the landlord be sold by the complainant under the orders of the chancery court,instead of by the sheriff; and that the proceeds be held, in lieu of the goods, subject to any priority of lien that the said landlord might have. None of the creditors or beneficiaries under the deed of assignment were made parties defendant, except A. Dreher, who was a resident of this State. The only averment in reference to the other creditors is found in the sixth paragraph of the bill, and is copied in the opinion. On January 30, 1892, the chancellor decreed that the chancery court assume jurisdiction of said trust, and take control and custody of the trust estate, and that the said Brown, as assignee, be required to give bond in the amount of $50,000. This bond was made and approved. The complainant, as assignee, then filed his petition in said cause, setting forth the levy on the stock of goods of said attachment by the landlord for her rent, amounting to $9,200, which [Louisville Manufacturing Co. et al. v. Brown.] was admitted by petitioner to be a valid lien on the goods, and praying for an order of the court authorizing him to sell said leasehold interest in the rented premises and the stock of goods to the highest bidder for cash, after giving 10 days notice, &c., and that the proceeds be held by the petitioner, first for the payment of said rent, and the balance held to be administered under the orders of the chancery court. On the 11th of March, 1892, this petition was granted by the court, and the petitioner was authorized and directed to sell the leasehold interest and the goods assigned to him according to the prayer of the petition. On March 22, 1892, S. Brown filed his report setting out that, after publication as required by the decree, he had sold the entire stock and furniture and the leasehold interest to one Louis Burger for the sum of $16,120. On March 23, 1892, a decree was rendered by the chancellor ordering a reference to the register to ascertain and report upon the fairness of the sale, and what portion of the proceeds of the sale should be applied to the payment for the rent of said premises, for which the landlord holds a lien upon the goods conveyed in the deed of assignment. On March 25, 1892, appellants, Louisville Manufacturing Co. and Hunt Manufacturing Co., filed their petition in said cause and asked that they might come into said suit as parties defendant, and "file answers, pleas or demurrers, and to do everything necessary for the protection of their rights and interests, as if they were made parties defendant in said suit by complainant." The com plainant demurred to this petition on the ground that the petitioners have shown no right to come in as parties defendant. The court sustained the demurrer of the complainant to this petition, but gave the petitioners leave to file their claims by petition, and have their interest ascertained and their rights protected. On March 28, 1892, the Louisville Manufacturing Co. and the Hunt Manufacturing Co. filed their petitions as allowed by said decree. On March 29, 1892, the register made his report in favor of the fairness of the sale, and ascertained that "If said rent is to be paid at once in cash, instead of in monthly instalments, according to the lease, then the said landlord should be paid the sum of $8,313.25." He also reported that by the averments of the lease, a reasonable attorney's fee was due for the [Louisville Manufacturing Co. et al. v. Brown.] enforcement of such contract, and that $460 was a reasonable fee for services rendered in the attachment suit brought on said lease, and that the cost of the attachment suit was $350.15, and that, therefore, the total amount due on the contract of lease was $9,123.40. The register also reported that he had refused to allow the Louisville Manufacturing Co. and the Hunt Manufacturing Co. to cross-examine witnesses called by complainant on said reference, or to offer evidence in chief on the issues directed to be made by the said decree of reference. The Louisville Manufacturing Co. and the Hunt Manufacturing Co. filed exceptions to this report of the register, on the ground that they were not allowed. to take part in said reference. Thereupon, the chancellor decreed that the report be set aside, and ordered the register to re-execute said reference, and to permit the said petitioners to participate therein. On April 8, 1892, the register again executed said reference, reported again in favor of the fairness of the sale, and reported the same amounts as the correct amounts to be applied to the landlord's claim. The petitioners, the Louisville Manufacturing Co. and the Hunt Manufacturing Co., filed exceptions to this report of the register, ascertaining the amount which should be applied to the payment of the landlord's rent, on the ground that only the amount which was due at that time should be allowed. On April 11, 1892, the chancellor overruled the exceptions of the Louisville Manufacturing Co. and the Hunt Manufacturing Co. to the report of the register, and confirmed said report, and decreed that the sum of $8,313.25 should be paid to L. L. Molton, the lessor, at once. The Louisville Manufacturing Co. and the Hunt Manufacturing Co. prosecute the present appeal, and assign as error the several rulings and decrees of the chancellor, as shown above. MOUNTJOY & TOMLINSON and GARRETT & UNDERWOOD, for appellants. LANE & WHITE, contra.-(1.) The petitioners could not have been made parties defendant.-Renfro Bros. v. Goetter, Weil & Co., 78 Ala. 311; Ex parte Printup, 7 Ala. 148, 6 So. Rep. 418. (2.) Appellants had no right to prosecute the appeal.-Harper v. Bibb, 45 Ala. 670; May v. Courtney, 47 Ala. 185. |