Mitchell v. Rice

• Decision Date: 11 February 1902
• Citation: 31 So. 498,132 Ala. 120
• Parties: MITCHELL v. RICE.
• Court: Alabama Supreme Court

31 So. 498

132 Ala. 120

MITCHELL v. RICE.

Supreme Court of Alabama

February 11, 1902

Appeal from chancery court, Lauderdale county; Wm. H. Simpson Chancellor.

Bill by Ariadne Rice, pro ami, against John J. Mitchell and others to enforce complainant's interest in a register in chancery's official bond, and to vacate decretal orders acquitting him of responsibility, and to subrogate complainant to his rights in certain securities. From a decree in favor of complainant, defendant Mitchell appeals. Affirmed.

Simpson & Jones, for appellant.

Emmet O'Neal and Jno. H. Weakley, for appellee.

SHARPE J.

In January, 1888, under a decree of the chancery court defendant Andrews, as register in chancery, sold for division certain lands, from the proceeds of which complainant was entitled to $5,190.80 and Thomas Bond and his three minor children were each entitled to $1,297.70. Prior to February 26, 1890, the purchase money had all been collected by the register, who, without authority, had placed it by general deposits in the private bank of defendant Campbell. Previously an order had been made in the same case, which conditioned upon his giving bond, appointed Campbell trustee for the interested minors, with authority to receive their shares of the funds; but he had not accepted the trusteeship or given the required bond. On the last-mentioned day, the register having reported collection in full, another order was made appointing Campbell, as trustee, to receive the money of all the infants upon his giving bond; but he did not accept or give bond under that order. In August, 1890, Campbell and his bank failed financially, and the money of complainant and the Bond children became lost to them and to the register. Before his failure Campbell transferred to Andrews certain choses in action as security for the deposit made of the land moneys. The register's official bond was for only $5,000, and defendants Mitchell and Campbell were the only sureties thereon. Andrews, the register, and Mitchell were half-brothers to each other, and they were each brother-in-law to Campbell. The Bond children, through their attorneys, procured an order for their shares to be paid to their guardian and about February, 1892, made demand on Mitchell for the amount due them. According to Mitchell's testimony, which is uncontradicted, he consulted with those attorneys as to whether a payment made by him as surety on the bond without a judgment against him as such would protect him from further liability on the bond, and was advised by them that it would to the extent of the payment. Mitchell, testifying as to what then occurred, says: "Before I made any payment, I went to see Mr. Campbell with reference to his protecting the interest of the other children. I cannot recall the conversation. The purpose I had in view was to protect all the children that had an interest in this fund. I undertook to pay off the Bond children, and to get Campbell to qualify as guardian of Ariadne Rice, and to pay off or protect her interest." Following this conference between Mitchell and Campbell, but at whose instance it does not appear, there was, in February, 1892, an order of court made appointing Campbell trustee for complainant alone, with authority to receive her money, on condition that he should give bond as such trustee in a prescribed sum. Pursuant thereto he gave a bond, whereupon the register made an order approving the bond, and making the appointment absolute. Mitchell tendered most of the amount due the Bond children to their attorneys, who directed that he hand the same to the register, to be forwarded to the guardian of those children; and accordingly he handed the register from time to time sums amounting in all to about $4,000, covering most of the amount due them, with interest. Thereafter the register made payments to appellant to amount to about $2,000 on account of the money so furnished by appellant, though appellant testifies that when he furnished the money he regarded the register as insolvent, and that he did not expect it would be repaid. In February, 1893, the register filed a report, stating, among other things, that pursuant to the court's orders he had paid the sum due the Bond children to their guardian, and that he, on the 2d of March, 1892,...