Jefferson County Sav. Bank v. Francis

• Decision Date: 05 January 1898
• Citation: 23 So. 48,115 Ala. 317
• Parties: JEFFERSON COUNTY SAV. BANK v. FRANCIS ET AL.
• Court: Alabama Supreme Court

23 So. 48

115 Ala. 317

JEFFERSON COUNTY SAV. BANK v. FRANCIS ET AL.

Supreme Court of Alabama

Jan 5, 1898

Appeal from chancery court, Jefferson county.

Bill by R. W. Francis and another against the Jefferson County Savings Bank. Decree for complainants, and defendant appeals. Reversed.

John P Tillman and John E. Miles, for appellant.

Alex. T. London and John London, for appellees.

BRICKELL C.J.

The bill of complaint in this cause was filed on February 20 1890, and thereafter, and before answer, the defendant filed a motion to dismiss the bill for want of equity, and a demurrer. The demurrer was overruled, but no action was taken on the motion to dismiss. Thereupon the defendant filed its answer, and after the taking of testimony the cause was submitted for decree on November 14, 1895, and on the same day a decree was rendered declaring the complainants entitled to relief, and ordering a reference to the register. Upon the coming in of the register's report, there being no exceptions thereto, the cause was submitted for final decree and a decree was rendered granting the relief prayed for. Subsequently an application for a rehearing was granted, and thereafter the cause was again submitted for final decree, the submission including defendant's motion to dismiss for want of equity and demurrer, and a final decree was rendered overruling the demurrer and granting relief, but the decree was silent as to the motion to dismiss, and no action is shown to have been taken on it. Rule 76 of chancery practice provides that the defendant may, at any stage of the cause, move to dismiss the bill for want of equity, unless a similar motion has been previously made and determined, and that such motion may be made and heard in connection with the final hearing. The rendition of the final decree involved the overruling of the motion to dismiss, and, as this is assigned as error, we will direct our attention to the question whether, under the facts stated in the bill, a case of equitable cognizance is presented.

The averments are substantially as follows: "Some time ago" R. W. Francis was the owner of 20 shares of the capital stock of the Excelsior Foundry & Machine Company, "a corporation doing business at Avondale, in Jefferson county, Alabama," the balance of the stock being held by other parties, one of whom was J. M. Carter. That said company had purchased a lot from the Avondale Land Company, the legal title to the same being retained in the vendor; that said Carter "purchased, or by some means obtained, the majority of the stock of said Excelsior Foundry & Machine Company. The exact amount of his holdings is not known to complainants, but they were informed and believe that said Carter held all of the stock of said Excelsior Foundry & Machine Company except the 20 shares held by said Francis. The said Carter induced the directors of the said Excelsior Foundry & Machine Company to order said Avondale Land Company to make a deed conveying said land to said Carter, as complainants are informed and believe; but the means by which said deed was obtained, or by whose direction it was made, are not known to complainants." The said Francis did not authorize the making of said deed, nor did he have notice of any stockholders' or other meeting called for the purpose of authorizing the making of the same. That the Avondale Land Company made and delivered to Carter a deed conveying to him said land, and neither of said complainants knew of the making of the same. That, after obtaining said deed, on July 15, 1887, Carter executed and delivered to the defendant a mortgage conveying to it said land and the improvements thereon to secure an indebtedness of $5,000; and that on August 3, 1887, he conveyed said land by a deed of bargain and sale to the Ellen Ross Iron Works, a body corporate. On August 22, 1888, the debt to defendant being due and unpaid, the mortgage was foreclosed, and the defendant became the purchaser of the land at the sale at the price of $6,086.46, and took possession of the property; and that it claims that by said foreclosure the right of redemption of both Carter and the Ellen Ross Iron Works was lost. The bill then alleges: That when complainants ascertained the facts above recited they called upon the defendant, and asserted their claim upon and interest in said land, and that "on December 9, 1887, an agreement and composition was made between defendant and complainants whereby defendant recognized the claim of complainants to the extent of $1,000 as against said real property conveyed to it by Carter, and the defendant then and there, acting by and through its president, C. F. Enslen, released its mortgage on said real estate in favor of complainants to the extent of $900 in favor of R. W. Francis, and $100 in favor of said Storrs." A memorandum of said agreement and release was then and there made and signed by said C. F. Enslen, president of the defendant bank, and was attached to the record of said mortgage in the probate court of said county, and is in words and figures as follows: "I hereby state that R. W. Francis and John S. Storrs have claims on the land conveyed by J. M. Carter to the Jefferson County Savings Bank by the mortgage to the record of which this is attached for $900 and $100, respectively, and that said mortgage is, as to said amounts, released. December 9th, 1887. [Signed] C. F. Enslen, Pres." That the "interest of John S. Storrs in said property arose out of a transfer, or agreement to transfer, part of said stock held by said Francis made by said Francis with said Storrs, and, said stock not having been transferred, the said agreement of defendant with complainants was made jointly as stated." That complainants' claim upon said land was a valid and subsisting one at the time of said foreclosure, and that defendant, having taken possession of all of said property under said foreclosure at said bid of $6,086.46, has made itself a trustee of the amounts of complainants' said claims, with interest thereon; and that it has not paid to any one any part of its bid, and has not accounted for any part of complainants' claim on said land. The bill prays for a decree ascertaining the amount of complainants' claim, and declaring defendant liable therefor, and that upon default in the payment of the amount ascertained to be due said land be sold for the satisfaction of the same, and for general relief. We have given above all the allegations of the bill in the order in which they are averred.

The very meager statement of facts in the bill makes it difficult to determine the theory upon which complainants base their right to relief. If we consider the bill apart from the averment as to the transaction between complainants and defendant resulting in the alleged agreement and composition above recited, the particular grievance complained of seems to be that the interests of the Excelsior Foundry & Machine Company, and those of the complainants as stockholders therein, have been injured by the act of Carter inducing the directors of said corporation to authorize the Avondale Land Company to convey to him the legal title to certain lands in which the Excelsior Company had an equity arising...