Gardner v. Mobile & N.W.R. Co.

• Decision Date: 01 May 1894
• Citation: 15 So. 271,102 Ala. 635
• Parties: GARDNER ET AL. v. MOBILE & N.W. R. CO.
• Court: Alabama Supreme Court

15 So. 271

102 Ala. 635

GARDNER ET AL. v. MOBILE & N.W. R. CO.

Supreme Court of Alabama

May 1, 1894

Appeal from chancery court, Mobile county; W. H. Taylor, Chancellor.

Action by the Mobile & Northwestern Railroad Company against Lucy R Gardner and others. From a decree for complainant, defendants appeal. Reversed.

The prayer of the bill was to cancel and remove certain deeds of conveyance as a cloud on the title to property alleged to belong to the complainant, and for an injunction to prevent the commission of trespasses by some of the defendants. The bill averred that the complainant was incorporated under the general laws of the state of Alabama on July 6, 1870; that as such corporation, it was authorized to build its road from Mobile in a northwesterly direction, and that for that purpose it had secured for its uses, and for its right of way, certain property described in the bill; that on this said property it had constructed its roadbed, had built bridges, etc., and that for a time it had operated its road thereon. The bill further averred that, for a while, work on the Mobile end of its line had been discontinued, and that work had commenced on the Mississippi division of its road where something over 20 miles of road was built, which was operated up to a recent period, when the complainant was deprived of the use of that part of its road by the foreclosure of a trust deed given to secure its bonded indebtedness; but that the Alabama corporation has remained in possession of its line of road, and that it has never abandoned its franchises, rights, or property. It was also averred in the bill that adverse claim to some of the property and franchises of the complainant in Mobile county was set up by the respondents; that such adverse claim was founded upon certain deeds from William H. McIntosh, as trustee, who claimed under deeds from the sheriff of Mobile county, to Lucy Gardner, administratrix as aforesaid, and Mary Henry, executrix as aforesaid. It was further averred that the deed from the sheriff to McIntosh, as trustee, was made pursuant to the sale made by the sheriff on the 8th of October, 1888, under two executions issued out of the circuit court of Mobile county, August 29, 1888. One of these executions was in favor of William H. McIntosh, assignee of Mary Henry and Lucy Gardner, as said representatives, on a judgment recovered against complainant March 23, 1874, by William G. England & Sons, and was for $2,500. The other execution was issued August 29, 1888, in favor of said William McIntosh, as assignee of Mary Henry, as executrix of Thomas Henry, deceased, on a judgment recovered in said court 24th June, 1875, by Walter Burgess, against complainant, for $7,563.33. Sales by the sheriff under said executions were made October 8, 1888. The bill charges that no valid sale was made by the sheriff of the property and franchises described. First, because the property and franchises of complainant levied on and sold by the sheriff were not subject to levy and sale under executions from the circuit court. Second because said judgments were paid and satisfied before said executions were issued. Third, because said executions were not good and lawfully issued. The bill avers that said pretended sales and said deeds cast a cloud, however, upon complainant's said property and franchises. The bill charges that the said Ruffin its trespassing upon complainant's said property by dragging a chain along its roadbed, by driving stakes in its ground, asserting the said property was his, and not the property of complainant, and that he is threatening to drive off the employes of complainant from its said property.

The respondents demurred to the bill, upon the ground that the complainant had a plain and adequate remedy at law; and by way of plea set up that no such corporation as the complainant existed, and that the bill was filed without authority. Answering said bill, the respondents admitted that such a corporation as the complainant was incorporated, but alleged that it had lost its charter by failure to comply with certain statutory requirements, and that the corporation had ceased to exist by nonuser of its franchise for five consecutive years. The respondents in their answer also denied that the complainants had been holding possession of the property in controversy, and, further answering, alleged that they were the owners of the land in controversy, and admitted that their claim to such ownership rests upon the sales made by the sheriff, and the deed executed by him as described in the bill. It was shown by the evidence that England & Sons recovered a judgment against the complainant corporation on March 23, 1874, for $2,500; that execution was issued on this judgment April 28, 1874, and returned "No property found," and that this judgment was kept alive by the repeated issuance of executions, 10 years not elapsing between any of the dates of issuance; that this judgment was assigned to the Aetna Life Insurance Company, and that on March 31, 1881, the Aetna Life Insurance Company assigned the same judgment to Thomas Henry and William H. Gardner, and that on August 16 and 22, 1888, respectively, Lucy R. Gardner, as administratrix, and Mary Henry, as executrix, of their deceased husbands' estates, assigned their respective interests in said judgment to W. H. McIntosh. It was further shown that on August 29, 1888, a pluries execution was issued by the clerk of the circuit court, in the name of W. H. McIntosh, assignee, and that under this last execution the sheriff levied upon the property of the complainant, and sold the same, at which sale said McIntosh became the purchaser.

On March 1, 1875, Walter Burgess recovered a judgment in the circuit court of Mobile county against the complainant for $7,563.33. On May 9, 1876, Walter Burgess assigned this said judgment to W. H. Gardner, and on August 16, 1888, Lucy R. Gardner, as administratrix of the estate of W. H. Gardner, deceased, assigned said judgment to W. H. McIntosh. Execution was issued on this judgment July 13, 1875, but no other execution was issued until August 29, 1888, when the execution was issued in the name of W. H. McIntosh, assignee. Under this last execution, the sheriff levied upon the property of the complainant; at the same time he levied under the execution issued upon the England judgment, at which sale McIntosh became the purchaser. These judgments were assigned to W. H. McIntosh by Mary Henry and Lucy R. Gardner under a contract, to be held by said McIntosh, as trustee, pending an option which had been given by them to certain other parties. The time for the exercise of this opinion having elapsed, the said Mary Henry and Lucy Gardner requested McIntosh, as trustee, to reconvey the property to them, which he did in due form by deeds. It is these deeds, and the deed from the sheriff to McIntosh, which the complainant seeks to have canceled.

Fred, K. L. Bromberg, McCarron & Lewis, and Overall, Bestor & Gray, for appellants.

Pillars, Torrey & Hanow and H. Austill, for appellee.

STONE C.J.

The bill was filed to vacate a sale of lands made by the sheriff of Mobile county under executions which were issued from the circuit court of that county, founded on judgments rendered against the appellee. It seeks a cancellation of the conveyance made by the sheriff to the purchaser, and of subsequent conveyances dependent on it, and prays an injunction to prevent alleged trespasses on the lands. The validity of the sale by the sheriff is impeached on the ground of alleged irregularities in the issue of the executions, the payment of one of the judgments, and because the lands were the right of way of the appellee, and, as is asserted, not the subject of levy and sale under executions at law. Prior to the issue of the executions under which the sales were made, the judgments had been assigned. The assignments were not made in the mode prescribed by the statute (Code, § 2927), and the mandate of the executions was that the moneys made should be accounted for to the assignee of the judgments. In all other respects the executions corresponded to the judgments. Judgments have the assignable qualifies of choses in action, and may be transferred by parol or in writing. If a statutory mode of assignment is provided, it is cumulative, in the absence of express words inhibiting other modes of assignment. 2 Freem. Judgm. § 422. The assignment, however made, passes an equity which courts will recognize and protect. It entitles the assignee to sue on the judgment or to issue execution thereon in the name of the assignor, and is beyond his control or interference. 2 Brick. Dig. p. 153, §§ 308-317. The statute to which we have referred does not lessen the assignable quality of judgments nor limit the mode of assignment. It is cumulative, entitling the assignee, if the assignment is made in the mode provided, to sue on the judgment, or to the issue of execution thereon for his use, in the name of the plaintiff, whether living or dead. It in this way dispenses with the necessity of revivor in the event of the death of the plaintiff, and, under the operation of section 2595 of the Code, he may make himself the sole party on the record. The error in the mandate of the executions is, at most, a mere irregularity, incapable of injury to the appellee, and because of such irregularity a court of equity will not interfere to vacate a sale made by the sheriff. 2 Freem. Ex'ns, § 310; Ray v. Womble, 56 Ala. 32; Lockett v. Hurt, 57 Ala. 198. One of the judgments,-the one it is asserted was paid prior to the issue of execution thereon,-seems to have been assigned by the attorney of the plaintiff therein. Without special authority, an attorney at law can not assign a judgment he...