Tompkins v. Drennen

• Decision Date: 22 May 1893
• Docket Number: 100.
• Citation: 56 F. 694
• Parties: TOMPKINS v. DRENNEN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

56 F. 694

TOMPKINS v. DRENNEN et al.

No. 100.

United States Court of Appeals, Fifth Circuit.

May 22, 1893

Statement by TOULMIN, District Judge:

The bill in this case was filed to enjoin the sale of appellant's property, levied on under an execution issued on a judgment obtained against him in the state circuit court of Jefferson county, Ala. The facts on which the judgment was obtained were, in substance, as follows: On December 1, 1886 appellant sold a block of land in the city of Birmingham Ala., to Royster and Martin, making them a deed therefor, and receiving contemporaneously from them a mortgage to secure the payment of the purchase money, evidenced by two notes each for the sum of $13,333.33, due at one and two years after date. By the terms of the mortgage it was provided that, if there was a failure to pay either of said notes at maturity, appellant was authorized to take possession of the block of land, and to sell the same at public outcry for cash. The note falling due on December 1, 1887, was not paid and on December 7th appellant duly advertised the property for sale, and on January 7, 1888, affered it for sale at public outcry to the highest bidder for cash. Charles D. Woodson became the purchaser for the sum of $32,000. On the same day appellant executed a deed to Woodson, acknowledging therein the payment of the consideration of $32,000, and also wrote a letter to Royster and Martin, inclosing a statement of account between them, and a check for $42.85, stating that this amount was the balance due them after paying the mortgage debt, with interest, and expenses of sale; and on February 21, 1888, appellant made an entry on the record of the mortgage of the words, 'Satisfied in full.' Prior to December 7, 1887, and to the advertisement of the mortgage sale, appellee Drennen purchased the block of land from Royster and Martin, and after said sale purchased their claim for the balance of the proceeds thereof. He subsequently entered suit against appellant for such balance in the circuit court of Jefferson county, Ala., on the common counts in assumpsit, one of which was for money had and received. Appellant appeared and pleaded to the suit, and in due course of proceedings judgment was recovered by appellee for the sum of $2,628.75. From this judgment an appeal was taken by appellant to the supreme court of the state, which affirmed the judgment. In March, 1892, and after Drennen had obtained his judgment, appellant filed the original bill in this case, alleging as the facts constituting the equity of the bill that Woodson never paid any money to him in cash on account of the purchase of said land, but that he executed to him his promissory note for the whole of the $32,000 purchase money, with interest at 8 per cent. per annum; that in December, 1889, appellant filed a bill in the state court to enforce his vendor's lien on said land, and in January, 1890, a decree was rendered in the suit subjecting the land to his lien and authorizing a sale of the same; that the sale was had in March, 1890, and that appellant, for want of a better bidder, was compelled to become the purchaser for the sum of $20,000, leaving a balance due him from Woodson, for which he thereafter obtained a personal judgment against him, on which execution was issued and $273.85 realized, leaving the balance of the $32,000 wholly unpaid; and that said Woodson had since died, hopelessly insolvent. The bill further averred that Drennen had caused execution to be issued on his judgment and to be placed in the hands of the sheriff of Jefferson county, Ala., who had levied the same on appellant's property. The bill prayed for an injunction restraining Drennen from enforcing the collection of his judgment and the sale of appellant's property under the execution.

Drennen filed demurrers to the bill, and also moved to dismiss it for want of equity. On the hearing the bill was dismissed. This was on June 23, 1892. On July 23, 1892, the amended bill was filed, averring in substance and effect that Drennen had no right or title to the claim sued on in the state circuit court, and that said court had no jurisdiction to render any judgment against appellant...