Rehearing
Denied June 6, 1940.
Appeal
from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Proceeding
in equity by the State of Alabama, on the relation of James
B. Little, as Superintendent of Banks, liquidating the
Peoples Bank of Mobile, to sell certain real estate as a part
of the assets of said Bank, wherein P. B. Laurendine
intervened and filed a petition opposing the sale and
propounding his claim as a creditor of the Bank. From a
decree overruling a demurrer to the petition of intervention
complainant appeals.
Affirmed.
THOMAS
J., dissenting and THOMAS, J., and GARDNER, C.J., dissenting
on rehearing.
PER
CURIAM.
The
averments of the petition of Laurendine, as last amended
show the creation of an express trust in the Barrett property
ultimately conveyed to the Peoples Bank of Mobile, in
consummation of the joint adventure participated in by
Laurendine on the one part and the bank through its president
on the other to acquire said property, and the petitioner is
entitled to participate in the profits arising therefrom
after reimbursing the bank for the money advanced, with
interest, and other lawful charges against said property, and
therefore entitled to an accounting as prayed in said
petition.
The
demurrer to the petition was therefore properly overruled,
and the decree of the circuit court is due to be affirmed.
Affirmed.
All the
Justices concur, except THOMAS, J., who dissents.
THOMAS
Justice (dissenting).
The
liquidator came into possession of an interest in the land in
question in the City of Mobile and duly sought to sell the
same for $2,500. Laurendine objected to the sale on the
grounds of inadequacy of the offer of purchase price, and
also prayed for an accounting.
The
petition for leave to intervene contained the claim made in
July 19, 1927, to the superintendent of banks, which, among
other things, averred:
"One
Thomas C. Barrett, who died prior to June 25th, 1919, was
at the time of his death indebted to the Peoples Bank of
Mobile, Alabama, in a considerable sum. Subsequent to his
death and prior to June 25, 1919 I entered into an
agreement with Florence E. Barrett, the widow of the said
Thomas C. Barrett, and who was his sole devisee and legatee
under his last will and testament, by the terms of which I
agreed to purchase all of the real estate belonging to said
Estate for the sum of $2,250.00 and the assumption by me of
all of the debts of the said Thomas C. Barrett. Thereafter
Mr. Alfred L. Staples as President of the Peoples Bank
stated that if I would give the said bank the benefit of
the contract which I had with Mrs. Barrett that the Bank
would put up the money to pay Mrs. Barrett and also with
which to pay the creditors of the said Thomas C. Barrett;
that I would be authorized to manage the property and out
of the rents collected and the proceeds of sale of the
property the bank was to be paid all monies advanced by it,
together with interest, and after these amounts had been
paid any profit remaining was to be equally divided between
the bank and me.
"On
June 25, 1919, this agreement was then made in writing
between me and the said Peoples Bank of Mobile, through Mr.
Alfred L. Staples as its President, a copy of said written
agreement being hereto
attached and made a part of this claim as if fully set out
herein.
"Pursuant
to the agreement Mrs. Florence E. Barrett individually and
as Executrix of the last will and testament of Thomas C.
Barrett, deceased, on June 29, 1919, conveyed all of the
property belonging to the Estate of the said Thomas C.
Barrett to Alfred L. Staples, a copy of which is hereby
attached marked 'Exhibit B' and made a part of this
proof of claim as if fully set out herein.
"Subsequently,
Mr. Alfred L. Staples conveyed to the said Peoples Bank of
Mobile all of the property described in the said deed from
Florence E. Barrett."
This
claim by petitioner was filed pursuant to Sections 6310 and
6312 et seq. of the Code, and fixed the status of
Laurendine's cause of action against the bank being
liquidated and affecting the properties in question.
Cooke v. Little, as Supt., Ala.Sup., 194 So. 853;
Jackson v. Whitesell, 213 Ala. 369, 104 So. 662;
Williams, Supt., v. Central Hanover Bank & Trust
Co., 229 Ala. 646, 159 So. 92.
To this
petition the demurrer of James B. Little, as Superintendent
of Banks, was sustained.
The
amended petition, to which demurrer of the Superintendent of
Banks was overruled, contained, among other things, the
following averments:
"Petitioner
entered into an agreement in the early part of June, 1919,
with one Mrs. Florence E. Barrett whereby petitioner agreed
to purchase through and from her, and she agreed to sell
and convey to petitioner, all property whether real,
personal and mixed, in the County of Mobile, Alabama, owned
individually by said Mrs. Barrett or acquired by her as the
Executrix and sole devisee under the last will and
testament of her deceased husband Thomas C. Barrett; the
consideration moving to said Mrs. Barrett to be the sum of
$2,250.00 in cash and the assumption and payment by
petitioner of all the debts of the estate of said Thomas C.
Barrett, deceased. With this agreement, petitioner went to
said Peoples Bank, which was then engaged in the general
banking business in the City and County of Mobile, Alabama,
to borrow the necessary money, towit, approximately
$10,000.00, to enable him to carry out said agreement. Mr.
A. L. Staples, then President of said Bank and the officer
thereof to whom petitioner talked to secure the loan, and
then and there acting within the line and scope of his
authority as such officer of the Peoples Bank, stated to
petitioner that if petitioner would give said bank a joint
benefit in said Agreement or contract that petitioner had
with Mrs. Barrett that his said bank would put up
sufficient money to pay Mrs. Barrett and the creditors of
her said husband's estate, and to clear the property of
encumbrances, with the understanding that out of the rents
collected and out of the proceeds of the sale of the said
properties, said bank was to be first repaid all monies
advanced by it, together with interest and any charges that
might arise against the properties, after which any profits
remaining were to be equally divided between said bank and
the petitioner. And petitioner avers that he agreed to this
proposition and that said Peoples Bank acting by and
through its said President A. L. Staples, confirmed said
agreement by writing in words and figures as follows:--
" 'Peoples Bank of Mobile
" 'Office of the President
" 'A. L.Staples
" 'Mobile, Alabama
" 'June 25, 1919.
"
'Mr. P. B. Laurendine
"
'Mobile, Alabama
"
'Dear Sir:--
"
'Confirming our conversation to-day I beg to advise that
in consideration of our joining in the purchase of the
property of T. C. Barrett, deceased, and Florence E. Barrett
individually, we will put up all money that is necessary to
clear the property from encumbrances, and we will then sell
said property to the best advantage, proceeds of all sales to
be applied,
"
'First: To the return of principal that we have put
into the property, together with all interest thereon.
Second: After the payment of all charges of any kind that
might arise against the property, any profit resulting
therefrom to be divided equally between us.
" 'Yours very truly,
" '(signed) A. L. Staples
"
'Above proposition hereby accepted,
" '(signed) P. B. Laurendine.'
"Under
said agreement with said Bank, the necessary purchase money
was advanced to petitioner by said bank to carry out
petitioner's agreement of purchase with said Mrs. Barrett
and on to-wit June 26, 1919, petitioner paid to said Mrs.
Barrett in cash the sum of $2,250.00 and she did
on said date execute and deliver unto said Alfred L. Staples
a deed conveying all real, personal and mixed property owned
by her in Mobile County, Alabama, individually and as
Executrix of the last will and testament of Thomas C.
Barrett, her deceased husband, and said Alfred L. Staples
thereupon took and held the legal title to said property in
trust for said Peoples Bank and petitioner and subject to the
terms of the aforesaid agreement until to-wit October 17,
1924, when the said Alfred L. Staples and wife, by deed dated
October 17, 1924, conveyed the legal title to the identical
property described in the Barrett-Staples deed above referred
to, unto said Peoples Bank, which bank thereupon held said
legal title to said property in trust for itself and
petitioner, subject to the terms of the aforesaid agreement.
* *
"Petitioner
further avers that under and by virtue of the agreement
entered into on to-wit said June 25, 1919, between petitioner
and said Peoples Bank by and through its President Staples,
your petitioner is entitled to one-half of the proceeds of
the rentals and sales of all properties, real, personal and
mixed described in and covered by said Barrett-Staples deed
and subsequently conveyed by said Staples to said Peoples
Bank."
The
demurrer to the bill challenged the conclusions of the
pleader, and that,
"It
affirmatively appears from the petition, as amended, that no
consideration other than a void consideration was furnished
by P. B. Laurendine by the contract entered into between
Laurendine and A. L. Staples, as President of the Peoples
Bank of Mobile. * * *
"For
aught that appears, Mrs. Florence E. Barrett, as executor of
the Estate of Thomas C. Barrett, had no authority to enter
into such...
