Randolph v. Brown

• Decision Date: 10 June 1897
• Citation: 115 Ala. 677,22 So. 524
• Parties: RANDOLPH ET AL. v. BROWN.
• Court: Alabama Supreme Court

22 So. 524

115 Ala. 677

RANDOLPH ET AL. v. BROWN.

Supreme Court of Alabama

June 10, 1897

Appeal from city court of Montgomery; William S. Thorington, Judge.

Bill by W. D. Brown against F. C. Randolph and others. From a decree in favor of complainant, defendants Lucy E. Prescott and Charles P. Nunn appeal. Affirmed.

The bill in this case was filed by the appellee, W. D. Brown against the appellants, on November 30, 1895. It avers that on the 2d day of August, 1896, F. C. Randolph was duly elected judge of probate for Montgomery county, Ala., and that on the 3d day of August, 1886, he executed an official bond in the penalty of $25,000 with complainant as one of the sureties thereon; that, while acting as such judge under said bond, said Randolph became a defaulter to the state of Alabama for moneys received by virtue of his office belonging to said state, in the sum of $1,405.73; that on the 1st day of August, 1893, the state of Alabama brought suit on said bond against orator and C. T. Pollard, as sureties thereon, in the circuit court of Montgomery county, and on the 30th day of November, 1895, a judgment was rendered in said suit against said defendants in said sum, and that on the 30th day of November, 1895, complainant paid in full the amount of judgment and costs, amounting in all to $1,455.73 to said state of Alabama; that, at the date of the execution of said bond, said Randolph was the owner of certain real estate situated in the city of Montgomery, described in said bill, and on the 1st day of May, 1890, he and his wife executed a mortgage thereon to the Lombard Investment Company, a nonresident of the state, to secure a loan contemporaneously made to him; that, therefore, said mortgage was executed while a lien existed on said property in favor of the state of Alabama by virtue of said bond; that said mortgage was thereafter assigned to Lucy E. Prescott, and thereafter, on the 21st of October, 1895, foreclosed under the power therein, and Charles P. Nunn became the purchaser that said Lombard Investment Company and Lucy E. Prescott still had an interest in said property unknown to complainant. Said Randolph, said investment company, said Lucy E. Prescott, and Charles P. Nunn were made parties defendant, and complainant prayed that he might be subrogated to the lien of said state upon said property, and that it might be sold for the payment of the said sum paid by him. On the 8th day of April, 1896, the defendants Lucy E. Prescott and Charles P. Nunn filed their answers to said bill incorporating the following pleas: "(1) That said suit alleged to said bill was partly for certain sums alleged to have been received by said Randolph for the use of the state of Alabama, and not paid to it, and partly for the sum of about four hundred dollars alleged in said suit to be due the said state as interest upon certain other sums of money not embraced in said suit, which it was alleged had been collected by said Randolph, and paid to it after the time they should have been paid. And defendants aver that said suit was for no part of the principal sums upon which said interest was claimed and alleged to be due; that said principal sums upon which said interest was claimed were alleged to have been paid to the said state in full, and said suit, as to said interest, was for interest solely for the time between the date said sums should have been paid to said state and the time they were alleged to have been paid; and they aver that said judgment alleged in said bill embraced said interest, and they are advised and aver that the payment of said judgment as to said interest vests no right in complainant to claim a lien upon said property for his reimbursement as to the same. (2) That said suit by said state of Alabama against said complainant and said Pollard was an action ex contractu upon said bond...