White v. Pulley

• Decision Date: 01 March 1886
• Citation: 27 F. 436
• Parties: WHITE v. PULLEY. [1]
• Court: U.S. District Court — Northern District of Alabama

27 F. 436

WHITE v. PULLEY. ^[1]

United States Circuit Court, N.D. Alabama.

March, 1886

The complaint in this case was as follows:

'Elizabeth E. White, the plaintiff, a citizen and a resident of the state of Illinois, by attorney, complains of the defendant Robt. L. Pulley, a citizen of Alabama, residing in said Northern district, summoned,' etc., 'of a plea of trespass on the case:

'For the whereas, heretofore, to-wit, on and before the twenty-fourth day of May, A.D. 1879, plaintiff, by appointment in due form of law in the probate court of Madison county, in the state of Alabama, was elected an appointed to be the administratrix of the estate of Michael White, deceased, and at the time aforesaid plaintiff was acting as such administratrix in settling the estate of her said decedent; and plaintiff avers that as such administratrix she, except as herein otherwise appears fully administered said estate, and, to-wit, on the eighteenth day of April, 1881, made her final settlement of said estate in the probate court of said Madison county; and the plaintiff was and is the sole distributee of her said decedent's estate, which estate was solvent on such settlement.

'And the plaintiff further avers that while she was acting as administratrix of said estate as aforesaid, and at the request of one Robert W. Coltart, she loaned to said Coltart, on, to-wit, on the twenty-fourth day of May, 1879, the sum of fifteen hundred dollars, for which, and as evidence thereof, the said Coltart made his bond or writing obligatory of date as last aforesaid, for said sum of fifteen hundred dollars; and to secure the payment of said sum of fifteen hundred dollars the said R. W. Coltart, on said twenty-fourth day of May aforesaid, made and executed his certain mortgage, whereby the said Coltart, among other things, did give, grant, bargain, sell, and convey to plaintiff his entire crop of corn and cotton to be grown by the said Coltart on his plantation situated in the Big Cane, in said county and state, upon the conditions in said mortgage set out; the said crop of corn and cotton then having been planted, and being then in process of cultivation, by said Coltart, on his said plantation.

'And plaintiff further avers that the crop so grown for said year 1879 amounted to twenty-seven bales of cotton, of great value, to-wit, of the value of fifteen hundred dollars; and the corn so grown on the said plantation for said year amounted to twelve hundred bushels, of the value, to-wit, of the value of six hundred dollars; and that all of said corn and cotton so grown as aforesaid was embraced in and covered by said mortgage.

'And plaintiff further avers that on, to-wit, on or about the eleventh day of October, A.D. 1879, the said Robert L. Pulley, the defendant, entered upon the plantation aforesaid on which said crop of corn and cotton then was, and took and carried away all and entire the said twenty-seven bales of cotton, and the said twelve hundred bushels of corn, and converted the same to his own use; and by such taking and carrying away and conversion as aforesaid by the said defendant, the security for the payment of the debt due from the said Coltart to plaintiff was taken away, destroyed, and rendered of no avail as a security to plaintiff for her said debt so due her from the said Coltart; and the said debt so due as aforesaid, together with the interest thereon, is yet due and unpaid, except that the same is entitled to a credit of five hundred and eighty-seven ($587) dollars paid thereon on the thirteenth day of December, 1879.

'And plaintiff further avers that the said Coltart departed this life on, to-wit, on the fifth day of September, 1879, leaving no property, estate, or effects liable to the payment of plaintiff's debts now due as aforesaid, nor out of which the same could be made; and plaintiff is the owner of said debt and mortgage aforesaid, and is entitled to the proceeds thereof.

'Whereby, and by reason of the premises, a right of action hath accrued to the plaintiff to have and recover of the defendant two thousand dollars ($2,000) as damages; hence this suit.'

To this declaration the defendant demurred as follows:

'(1) That said declaration does not show in what manner the said plaintiff acquired her title to the said mortgage and debt; (2) that said plaintiff did not, at the time of the alleged taking of said crop of corn and cotton, have such title thereto, or interest therein, or in and to the indebtedness secured by said mortgage, as entitles her in law to maintain this action; (3) that said action is of tort, and cannot be maintained by the plaintiff, whose declaration shows that the right of action accrued to her as administratrix, and not in her individual character; (4) that said declaration shows that no damage in law has been done said plaintiff for which this action can be maintained; (5) that the property alleged in said declaration to have been taken and carried away by the defendant, and by him converted to his own use, is by said declaration alleged to have been the property of the plaintiff as administratrix of the estate of Michael White, deceased, and not the property of the plaintiff in her individual capacity; wherefore plaintiff, in her individual capacity, has no action against defendant for any trespass upon or wrong to said property of said administratrix of said Michael White, deceased; (6) That plaintiff, as sole distributee of the estate of Michael White, deceased, cannot maintain any action for the alleged wrong or trespass against the plaintiff as administratrix of the estate of said Michael White, deceased; (7) that said declaration contains no averment that any judgment or decree of a court of competent jurisdiction has been rendered vesting in the plaintiff, as sole distributee of said Michael White's estate, the right of action upon the tort alleged in said declaration; (8) that the plaintiff cannot sue in this court on the trespass or tort alleged in the declaration for the reason that it is not alleged in said declaration that at the time said tort or trespass is alleged to have been committed said administratrix, or said plaintiff, was a non-resident of the state of Alabama; (9) that the plaintiff, as sole distributee of the estate of Michael White, deceased, hath complained against said defendant as in a plea of trespass on the case for alleged wrongs, or trespasses, against the administratrix of said Michael White's estate, whereas, the declaration ought to have been in a plea of trover for the value of the property alleged to have been taken and converted by the defendant.'

Without waiving the demurrer the parties waive trial by jury, and submit the case to the court on the demurrer and the merits; the defendants pleading the general issue, and setting up title under prior mortgages, in case the demurrer is overruled. The plaintiff proves the case substantially as made in the declaration. The defendant proves (1) a mortgage by plaintiff's grantor, Coltart, of land to a Mrs.

Hamilton, of date April 24, 1878, law-day January 1, 1879; (2) deed by Mrs. Hamilton to defendant, Pulley, under sale of the mortgaged land, October 11, 1879, deed dated October 15, 1879; (3) mortgage by Coltart and wife, September 18, 1876, to Pulley, defendant, of land to secure debt of $2,300, law-day September 18, 1877; (4) proof that land embraced in said deeds and mortgages is the same as that upon which the crops claimed by plaintiff were grown; that Pulley entered into possession of the land on which the crops were grown under his mortgage of September 18, 1876, immediately on the death of Coltart, about the middle of September, 1879, while the crops claimed by plaintiff were standing ungathered; that Pulley gathered the crops while holding the land under his own mortgage, and as purchaser under the sale under Mrs. Hamilton's mortgage; and at the time of entering had no knowledge of Mrs. White's claim, but learned of it soon after.

L. W. Day and Humes, Gordon & Sheffey, for plaintiff.

R. C. Brickell and Cabaniss & Ward, for defendant.

PARDEE J.

The question raised by the demurrer as to the plaintiff's right to maintain this action has been one of difficulty because the declaration contains the unnecessary statements that plaintiff, as administratrix of the estate of Michael White, has, except as otherwise appears, filed her final account of administration, and that plaintiff is the sole distributee of the said estate. The learned counsel for defendant have plausibly assumed that plaintiff was suing in the capacity of distributee for an alleged...