Smith v. Lusk

• Decision Date: 29 October 1898
• Citation: 24 So. 256,119 Ala. 394
• Parties: SMITH ET AL. v. LUSK ET AL.
• Court: Alabama Supreme Court

24 So. 256

119 Ala. 394

SMITH ET AL. v. LUSK ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, Marshall county; William H. Simpson Judge.

Bill by John A. Lusk and another against Seaborn T. Smith and others for the possession of land and the appointment of a receiver. From a decree appointing the receiver, defendants appeal. Affirmed.

The bill in this case was filed by the appellees, Lusk & Bell against Seaborn T. Smith, his wife, Sue E. C. Smith, five adult children of Seaborn T. Smith, and two minor children of Seaborn T. Smith. The bill alleges, in short, that certain lands belonged to Washington W. Griffin, who departed this life on the 15th day of July, 1881. Seaborn T. Smith became the administrator, and obtained deeds from all other persons interested in the lands except his own children. What interest, if any, Seaborn T. Smith obtained by these conveyances is not disclosed in the bill. Upon petition of the administrator, Seaborn T. Smith, the probate court of Marshall county decreed the sale of the land for the purpose of distribution among the heirs of Washington W. Griffin deceased. At the sale under this decree, Seaborn T. Smith purchased the lands, and received a conveyance from Robert N Bell, commissioner appointed by the court. The bill further alleges that the order of sale was made without notice to the heirs of Griffin, and that the deed made by Bell, commissioner, was insufficient to convey to Smith the legal title. It further appears in the bill that upon a settlement of the accounts of Seaborn T. Smith, as administrator, he charged himself with the sum bid by him for the land, and the heirs of Washington W. Griffin obtained decrees in the probate court for the amount of each distributive share, respectively, which decrees have been fully paid off and satisfied. Therefore the bill alleges that Seaborn T. Smith became invested with a perfect equity in and to the lands. The bill then avers that Seaborn T. Smith, on the 1st day of April, 1895, executed a mortgage on part of the lands to A. G. Henry. Afterwards the land so mortgaged was sold under decree of the chancery court of Marshall county, and bought at the sale by Lusk & Bell. Another portion of the land was, on the 2d day of September, 1895, mortgaged by Smith to James E. Butler and others. This last-mentioned mortgage was, on the 25th day of February, 1896, transferred and assigned to Lusk & Bell, and is now their property. On the 16th day of December, 1896, Lusk & Bell bought the property described in the last-mentioned mortgage at foreclosure sale under power contained therein. The bill further alleges that Seaborn T. Smith is insolvent, and that the property embraced in said mortgages is wholly insufficient to pay the debts secured thereby. The bill shows that all the respondents except W. W. Smith and his wife, Eugenia Smith, are in possession of the lands, using and occupying the same. It further appears from the bill that all the respondents except W. W. Smith and Eugenia Smith are threatening to cut and remove timber from the lands, and that these respondents are insolvent, and that the land without the timber on it is insufficient to pay the debt due Lusk & Bell. Upon this state of facts, the bill prayed for the appointment of a receiver to take charge of the lands and the crops for the year 1897, and rent the land until the determination of this litigation, that the rents and profits thereof might be preserved for the satisfaction of complainants' debt. On the hearing of the petition of the complainants for the appointment of a receiver upon the averments of the bill and the affidavits introduced in support of such application, the chancellor rendered a decree appointing the receiver as prayed for. From this decree the defendants appeal, and assign the rendition thereof as error.

Amos E. Goodhue, for appellants.

Lusk & Bell, for appellees.

McCLELLAN J.

The theory of the bill in this case, which is prosecuted by John A. Lusk and Robert N. Bell against Seaborn T. Smith and others, is that Smith had, not the legal title, but a perfect equity, in and to all the land in controversy, prior to and on April 1, 1895; that on that day he conveyed to a trustee for the benefit of his creditors the N.E. 1/4 of the N.W 1/4, and the one-third undivided interest in the N.W. 1/4 of the N.E. 1/4, of section 36, township 8, range 2 E.; that these lands were sold by said trustee in the execution of the trust, and purchased by the complainants; that on September 2, 1895, Smith and his wife mortgaged the S. 1/2 of the N.E. 1/4, and the N. 1/2 of the S.E. 1/4, of said section 36, to James E. Butler and others; that this mortgage was efficaciously assigned to complainants, and they on December 16, 1896, sold said land under the power of sale contained in the mortgage, and purchased at their own sale, but without authority so to purchase being given in the instrument; that complainants, therefore, now have a perfect equity in and to the first-described parcel of land, and either a perfect equity, or the rights of mortgagees of a perfect equity, depending upon whether Smith elects to affirm or disaffirm this purchase at the mortgage sale, in and to the parcel of land (160 acres) last above described; and, further, that the naked legal title to all the land is in the heirs of one Washington W. Griffin, deceased, who are made parties defendant to the bill. This theory as to the status of complainants' rights and interests in the property is supported by the facts averred in the bill. Seaborn Smith's perfect equity is rested, by the averments, on the sale by him, as administrator of said Griffin, of all the land, under a decree of the probate court; the purchase by him individually at such sale; the report and...