Smith v. Smith

• Decision Date: 08 February 1894
• Citation: 14 So. 765,102 Ala. 516
• Court: Alabama Supreme Court
• Parties: SMITH ET AL. v. SMITH ET AL.

14 So. 765

102 Ala. 516

SMITH ET AL. v. SMITH ET AL.

Supreme Court of Alabama

February 8, 1894

Appeal from chancery court, Cleburne county; S. K. McSpadden Chancellor.

Bill of complaint by W. R. D. Smith and others against Carrie Smith and others for an account and other relief. Respondents demur. A demurrer to the bill was sustained, and complainants appeal. Affirmed.

Aiken &amp Burton, for appellants.

Blackwell & Keith, for appellees.

COLEMAN J.

The bill avers that in November, 1889, Charles A. Smith died intestate, leaving surviving him a widow, Martha A. Smith and several named children, his heirs at law; that in June 1890, one of his children, W. R. D. Smith, was appointed administrator of his estate, and that C. E. J. Smith, another child and heir, and W. H. Smith, Sr., A. J. Smith, J. W Hunnicutt, J. F. Morgan, R. T. West, and D. C. Harris, became sureties on his administration bond. The administrator's bond is made Exhibit A to the bill. The bill avers that W. R. D. Smith, the administrator, C. E. J. Smith, the brother and surety, and Martha A. Smith, the widow, about the 1st day of January, 1890, formed a mercantile copartnership under the name and style of Smith Bros. & Co., and continued to do business until about the 25th of November, 1892, when the firm failed, and ceased to do business. The bill shows that W. R. D. Smith, administrator, after his appointment, but the exact time is not known, loaned the firm of Smith Bros. & Co. a large sum of money, to wit, $6,000, of the assets of said estate; that on the 25th day of November, 1892, the day the firm failed and ceased to do business, Smith Bros. & Co., W. R. D. Smith, C. E. J. Smith, and Martha A. Smith (members of the firm) executed to W. H. Smith, Sr., A. J. Smith, J. F. Morgan, and J. W. Hunnicutt, who were in part the sureties on his administration bond, a mortgage on certain real and personal property, and goods, wares, and merchandise described in the bill, and that the mortgagees took immediate possession and control of the personal property conveyed. Exhibit B to the bill is a copy of the mortgage. It is averred that the mortgage was filed for record on the day of its execution, and that on the same day, but after it was filed, various creditors sued out respective attachments for large sums claimed to be due them severally from the firm of Smith Bros. & Co. against Smith Bros. & Co., W. R. D. Smith, C. E. J. Smith, and M. A. Smith, which were levied by the sheriff on all the property conveyed in said mortgage, and the personal property was sold under said attachments by the sheriff, and the proceeds appropriated by the attaching creditors; that the sheriff and creditors had actual knowledge of the execution of the mortgage, and the sale was forbidden; that some of said creditors have filed their bill in the chancery court, praying that the mortgage be annulled and canceled; and that the creditors have had the real estate condemned by the judgment of the circuit...