Kidd v. Morris

• Decision Date: 31 January 1901
• Citation: 127 Ala. 393,30 So. 508
• Parties: KIDD v. MORRIS ET AL. [1]
• Court: Alabama Supreme Court

30 So. 508

127 Ala. 393

KIDD v. MORRIS ET AL. ^[1]

Supreme Court of Alabama

January 31, 1901

Appeal from chancery court, Elmore county; J. R. Dowdell Chancellor.

Bill by John A. Lancaster and others against Josiah Morris & Co. and others. Bill dismissed, and Louisa V. Kidd, executrix of Horatio B. Tulane, deceased, appeals. Affirmed.

It was averred in the bill that said Tulane died in October, 1897 and that the complainants were appointed as special administrators of his estate pending the application for the probate of his will, and were acting as such administrators at the time of the filing of the bill; that, at the time of the death of H. B. Tulane, McKinney Thomas was indebted to him in a large sum, amounting to $30,000, and had been so indebted for a number of years, and that said indebtedness was evidenced by notes, two of which were attached to the bill, and were dated, respectively, March 6, 1895, and March 11, 1895; that on October 14, 1897, said Thomas was insolvent, and is still insolvent; that on October 14, 1897 said Thomas executed to Josiah Morris & Co. a mortgage which purported to be given to secure a debt due from him to said Josiah Morris & Co., amounting to $14,391.07, which was evidenced by three notes bearing date October 9, 1897, and payable, respectively, three, six, and nine months after date. The property conveyed in this mortgage and the provisions thereof are sufficiently set forth in the opinion. It was further averred in the bill that "the said mortgage was made and received with the intent to hinder delay, and defraud the creditors of said McKinney Thomas, including your orators; and orators aver that the said mortgage reserves a benefit to the grantor, and was made and received to enable the said McKinney Thomas to carry on his business of farming upon the plantation mentioned in said mortgage, and the business of a distiller of whisky, conducted on said plantation mentioned in said mortgage, unmolested by the creditors of the said McKinney Thomas, other than the said Josiah Morris & Co." The other averments of the bill are sufficiently shown in the opinion. The prayer of the bill was that a reference be had before the register, and that he be required to report the amount of the debt due the complainant, and that a decree be rendered declaring the mortgage given to Josiah Morris & Co. to be fraudulent and void as to complainants, and that Josiah Morris & Co., F. M. Billing, and McKinney Thomas be held liable for all the property conveyed in said mortgage, and that such property be condemned to the payment of the debt due from McKinney Thomas to the estate of H. B. Tulane. The mortgage was made an exhibit to the bill. To this bill the defendants Josiah Morris & Co. and F. M. Billing demurred upon the following grounds: "(1) Said bill is without equity. (2) Said bill avers, as a conclusion of the pleader, that the mortgage sought to be canceled was made with the intent to hinder, delay, and defraud the creditors, but avers no facts showing such fraud. (3) That the only power of disposition reserved in the mortgage to the mortgagor is to sell whisky in the warehouse, and account to the mortgagee for the proceeds thereof." It is not denied in the bill that the mortgage sought to be set up was given to secure a bona fide debt amounting to the sum recited therein, and no facts are alleged which show fraud in law. The defendants also moved the court to dismiss the bill for the want of equity. On the submission of the cause upon the demurrer and the motion, the chancellor rendered the following decree: "It is ordered and decreed that said demurrers be, and they are hereby, sustained, and said bill is hereby dismissed out of this court for want of equity," etc. This decree was rendered on September 9, 1898. On July 31, 1899, the appellant in this case, Louisa V. Kidd, as executrix of the will of H. B. Tulane, deceased, filed an application to the register to be allowed to take an appeal in said cause, and this application was granted on the date of the filing thereof, and the appeal was taken, and an appeal bond given by said Louisa V. Kidd, which was approved by the register. The order allowing said appeal recites that at the time of the granting of said appeal the office of special administrator had expired. In this court the appellees move to dismiss the appeal upon the ground that Louisa V. Kidd, as executrix, was not entitled to prosecute an appeal from a decree rendered in a suit between the several administrators and the defendants in said suit, who are the appellees on the present appeal.

Gunter & Gunter and J. M. Chilton, for appellant.

Watts, Troy & Caffey, for appellees.

TYSON J.

The original bill in this cause was filed by the special administrators of the estate of Tulane. On the 8th day of September, 1898, a final decree was rendered dismissing the bill. On the 31st day of July, 1899, this appellant, as executrix of the estate of Tulane, appeared before the register and prayed an appeal to this court from the decree dismissing the bill, and filed her appeal bond, which was approved by him, and the appeal allowed. It appears in the order entered by the register allowing the appeal that the term of office of the special administrators had expired. The appellee makes a motion here to dismiss the appeal. The question here presented cannot, on principle, be differentiated from the one reviewed in Stoutz v Huger, 107 Ala. 248, 18 So. 126. Unless the decision in that case is receded from, then the motion to dismiss this appeal must be denied. Without reviewing what is there said as to the construction which must be given the statutes making provision for appeals, we will simply add that the right of appeal or the right to have reviewed a judgment or decree in a cause has long since been recognized by this court to be conferred not only upon the parties to the record, but privies to the record, or those injured by the judgment or decree, and who will consequently derive advantage from its reversal. Hill's Heirs v. Hill's Ex'rs, 6 Ala. 166; Headon v. Turner, 6 Ala. 66; Dupree v. Perry, 18 Ala. 34; Roberts v. Taylor, 4 Port. 421; Perine v. Babcock, 6 Port. 391. This same right is enforced by appellate courts in other jurisdictions. 2 Enc. Pl. & Prac. § 151. Of...