Tigrett v. Taylor

• Decision Date: 29 June 1912
• Citation: 180 Ala. 296,60 So. 858
• Parties: TIGRETT v. TAYLOR.
• Court: Alabama Supreme Court

60 So. 858

180 Ala. 296

TIGRETT v. TAYLOR.

Supreme Court of Alabama

June 29, 1912

Rehearing Denied Jan. 23, 1913.

Appeal from Chancery Court, Colbert County; W. H. SimpsonChancellor.

Bill by J. W. Taylor against C. F. Turner and I. B. Tigrett.From a judgment overruling a motion to dismiss for want of jurisdiction, holding pleas insufficient, and overruling demurrers to the bill, Tigrett appeals.Reversed and remanded.

McClellan J., dissenting.

The bill shows complainant to be a resident of Corinth, Miss Turner a resident of Alabama, and Tigrett a resident of Jackson, Tenn.; that the Tishomingo Savings Institution is a corporation organized under the laws of the state of Mississippi, and engaged in the banking business, and that Turner became indebted to it in the sum of $10,000, evidenced by seven promissory notes, four in the sum of $1,000 each one in the sum of $2,500, and one in the sum of $2,000, and another in the sum of $1,500; that in the regular course of business the Savings Institution became indebted to the First National Bank of Cincinnati and transferred and assigned certain collateral as security, consisting of notes, bonds, mortgages, etc., among which was Turner's note for $2,000, and also became indebted to the National Bank of Commerce of St. Louis, Mo., and transferred as collateral security certain notes and mortgages, among them two of defendant's notes for $1,000 each; and that it became indebted to the Hanover National Bank of New York, and transferred as collateral security to it certain bonds and mortgages and notes, among them two other notes for $1,000 each, and the one for $2,500, and the one for $1,500.The bill also sets out other indebtedness, and the transfer of other collateral, to other institutions; that later, at the suit of E. Van Winkle, the Savings Institution was put in the hands of a receiver, and that complainant, J. W. Taylor, was appointed receiver, he being also a partydefendant to said suit, and that the assets of complainant and the Savings Institution were collected by the receiver under the order of the court, and distributed among his creditors, and that the suit was finally disposed of and the receiver discharged; that when the amount due the National Bank of Commerce became due and payable it sold all the collateral held by it, including the two Turner notes referred to, and became the purchaser of it, and thereby cut off the Savings Institution from all right to said collateral, or any part thereof.It is further alleged that after the appointment of a receiver, and before the sale by the National Bank of Commerce of the collateral held by it, complainant made and entered into an agreement with I. B. Tigrett, whereby he agreed, for the consideration of 8 per cent. interest and all expenses, to buy the collateral paper, including notes, deeds of trust, mortgages, stocks, and bonds, which had been made to and hypothecated with said bank by the Savings Institution; complainant agreeing to furnish him with the list of all the solvent collateral papers desirable to be purchased, the purchases to be made in the name of Tigrett, to secure him for the money so advanced, Tigrett to be the judge of what should be bought, and complainant to look after the matter of making settlement and securing claims, where security was necessary.Later J. B. Sanders and S. S. Finger and Tigrett agreed to advance the money to pay for said collateral; each advancing one-third of the amount required, with the understanding and agreement that complainant should have the benefit of all the collections on the collateral over and above that required to pay the money so advanced, and all expenses, at interest of 8 per cent.The bill then sets out the number of shares of stock, the number of notes, the number of bonds, and a number of mortgages and deeds of trust, and also sets out a number of collections made by Tigrett and others, and some made by Tigrett himself, and that Tigrett now has possession of a number of notes, bonds, mortgages, etc., and that he has already collected $20,000 more than enough to reimburse him for the money advanced, with interest and expenses.The bill prays for an accounting as to the amount of money advanced by Tigrett, the expenses paid out by him, and the interest on the same, also the amount collected by Tigrett, and the ascertainment of the papers still in his hands uncollected; that a decree be entered against Tigrett for the amount over and above the amount due him, and that he be required to surrender the notes, mortgages, etc., still in his possession; and that complainant be permitted to fasten a trust on the same, and to foreclose and collect such other and outstanding notes, mortgages, etc.; and incidentally for general relief.

Almon & Andrews, of Sheffield, and Biggs & Spragins, of Jackson, Tenn., for appellant.

Kirk, Carmichael & Rather, of Tuscumbia, for appellee.

MAYFIELD J.

The chancery court of Colbert county had no jurisdiction.The main equities of the bill are to declare and enforce a trust, and to compel an accounting.Both parties to the trust and to the account are nonresidents, and most all the transactions between the parties occurred in other states.

The bill also seeks to have respondent Tigrett compelled to surrender and deliver up to the complainant a great number of collaterals, consisting of notes, bonds, mortgages, deeds of trust, and corporate stocks, which are alleged to be held in trust for complainant.A few of the notes and one or more of the mortgages were executed by the respondent Turner, who resides in Colbert county, Ala.; and the lands embraced in one or more of these mortgages are situated in that county, and the bill seeks to foreclose this mortgage.These facts, the complainant claims, give the chancery court of Colbert county jurisdiction.

If the bill was filed by the proper party to foreclose this mortgage, the court would have jurisdiction for that purpose; but the equity of the bill or suit is not the foreclosure of this mortgage.The bill affirmatively shows that it cannot be known that the complainant has, or will have, an interest in this mortgage, or the debt secured thereby, until an accounting and settlement is had; in fact, the purpose of the bill is to compel this accounting and settlement, in order to ascertain if the complainant has an interest therein, and, if so, to what extent; and if, on the accounting and settlement, it is ascertained that complainant has an equity in the notes and mortgage, then that Tigrett be required to surrender them to complainant, and that the mortgage be foreclosed.The foreclosure of this mortgage and the cancellation of other deeds are matters purely incidental to the main equities of the bill, and are sought for the purpose merely of doing full and complete equity in the premises.

The respondent...