Jordan v. Phillips & Crew Co.

• Decision Date: 23 June 1900
• Citation: 29 So. 831,126 Ala. 561
• Court: Alabama Supreme Court
• Parties: JORDAN ET AL. v. PHILLIPS & CREW CO. ET AL.

29 So. 831

126 Ala. 561

JORDAN ET AL. v. PHILLIPS & CREW CO. ET AL.

Supreme Court of Alabama

June 23, 1900

Appeal from chancery court, Henry county; Jere N. Williams Chancellor.

Bill by H. C. Jordan and others against Phillips & Crew Company and others to recover certain realty, and for an accounting as to the profits. From a decree for defendants, plaintiffs appeal. Affirmed.

The bill in this case was filed by the appellants, H. C. Jordan J. S. Jordan, J. J. Jordan, A. P. Jordan E. Lee Jordan, E. B Jordan, and F. Rosa Simonton. The bill avers that on August 7, 1892, Junius Jordan became seised and possessed, as trustee, of certain lands, which are specifically described in the complaint, under a deed of conveyance executed on that day; that in this deed of trust the complainants were named as beneficiaries and cestuis que trustent; that upon the execution of said instruments the said Junius Jordan went into possession of the said lands described in said bill, and used them as such trustee until June 27, 1893, when Junius Jordan, as such trustee, unlawfully, and in violation of his trust, and contrary to the interest and rights of the cestuis que trustent, sold said property conveyed to him in the deed of trust to the Phillips & Crew Company, for the purpose of paying an antecedent debt due from the Phillips & Crew Company to Junius Jordan; and that the complainants, as said trustees under said deed executed to Junius Jordan, have never received any compensation whatever for the divestiture of the title and the execution of the deed to the Phillips &amp Crew Company. It was then averred that Junius Jordan died on June 4, 1893. The Phillips & Crew Company were made parties defendant. The prayer of the bill was for an accounting to ascertain what, if any, of rents, incomes, or profits from said lands may be due from the respondents to the complainants, and that upon the final hearing the chancellor will decree that the complainants are entitled to the lands described in the bill, and will order the title thereto devested out of the respondents and invested in the complainants. The trust deed alleged in the bill to have been executed to Junius Jordan, as trustee, was attached to the bill as an exhibit, and, after naming the state and county was in words and figures as follows: "Know all men by these presents that we, J. Jordan & Co., a partnership composed of Junius Jordan and F. Rosa Simonton, the said F Rosa Simonton being joined herein by her husband, J. H. Simonton, who hereby expresses his consent for the said F. Rosa to execute this instrument, and who also joins herein for the purpose of relinquishing all rights which he now has or may hereafter be entitled to in and to the property hereinafter described and set forth, for and in consideration of the sum of five hundred dollars ($500) to us in hand paid by Junius Jordan, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey unto the said Junius Jordan, as trustee for H. C. Jordan, J. S. Jordan, Junius Jordan, Jr., F. Rosa Simonton, A. P. Jordan, E. Lee Jordan, and E. B. Jordan, the following described property: [Here follows description of lands conveyed, which are the same as those described in the bill;] to have and to hold the aforegranted premises, together with all the improvements and appurtenances thereunto belonging or in any wise appertaining, to the said Junius Jordan, as trustee aforesaid, his heirs and assigns, forever. And the said Junius Jordan shall have full power and authority to sell or mortgage the same, to borrow money on the same for the purpose of the improvement thereof, to rent the same without the accountability for the rent thereof, and to make such improvements, as said trustee, as in his opinion would seem proper for, and beneficial to, the interest of the beneficiaries thereof. And we do covenant with the said Junius Jordan, trustee as aforesaid, that we are lawfully seised in fee of the aforegranted premises," etc. This deed was signed by J. Jordan & Co., Junius Jordan, F. Rosa Simonton, and J. H. Simonton. The deed was filed for record in the probate court of Henry county on August 18, 1892. To this bill the defendants demurred upon several grounds, which may be summarized as follows: (1) The complainants have an adequate remedy in a court of law. (2) Said bill shows on its face that, if complainants have any remedy, it is by means of an action...