Eldridge v. Turner

COLLIER, C. J. We cannot think that the bill in this case is wanting in equity. The inducement of the maker of the note, it is alledged, was not only to obtain the payee’s interest in the horse which they held as joint property, but to lend his aid in promoting the bounty in favor of his son. How far he may have been influenced by the one consideration, or the other, it is impossible to know, nor is it important to inquire; for it is distinctly affirmed, that his purpose in meeting the proposition of the payee was to secure the amount for which the note was given to the complainant. Conceding that Camp’s interest in the horse was worth $500, or evén more, yet if he sold it under a stipulation with the purchaser, that he would take his note for that amount, a-r greeing upon its face that the money should be paid for the benefit of an infant son of the vendee, the vendor, by the acceptance of the note, and delivery of the horse, became a trustee for the son. The contract was consummated by these several acts, and became alike obligatory upon both parties — the vendee was bound to pay the money, unless he could show that the contract was invalid, irrespective of the question of consideration, (6 Ala. Rep. 600 ;) and the vendor would hold it in trust for the person for whose benefit the note purports to have been made. If, under such circumstances, the vendor could exempt himself from the performance of the trust, then he might successfully practice a fraud on the marker of the note, who but for the destination the money was to receive, never would have entered into the contract. The indorsement of the note by the payee to Eldridge, though for a full consideration, cannot affect the rights of the beneficiary. Upon its face it purports to be an undertaking [1056] to pay for the use of the complainant, (6 Ala. Rep. 821,) and of course informed the indorsee what was the character of the security he received. Assuming the case made by the bill to be true, and the in-dorsement of the note was a breach of trust on the part of Camp, which authorized the cestui que trust to come in equity and assert his right to the money. To make that right effectual and as expeditious as might be, it was allowable to pray an injuction to restrain the indorsee in the enforcement of his judgment. The object of the bill in this case is, to secure a trust fund in the hands of the defendant, Turner, and as secondary and 'ancillary to this object, a judgment against the holder of the fund is sought to be enjoined. It is unlike Shrader v. Walker, et al. 8 Ala. Rep. 244. There the complainant prayed an injunction upon the ground that the judgment was unequita-ble — being recovered upon a cause of action which should not be enforced. We held that the bill in such a case should be filed in the chancery court of the county where the judgment was recovered. It may be remarked that the necessary parties to the bill resided in bounties other than that in which it was filed, but whether, if the fact had been otherwise, the result would have been different, no intimation was given. See Freeman v. McBrown, et al. at this term: In the case at bar, we have seen that the primary object of the bill was not to enjoin a judgment, but to arrest a fund in the hands of a judgment debtor, so as to make it available to the party entitled to it. It is in effect a suit against him, and we think it was competent to have instituted it in any county in which he resided. True, the bill does not alledge where the defendant Turner lives, but he does not object that it is filed in a county which cannot take jurisdiction of the cause, atid it is not for a mere accessorial party to ask its repudiation. The> testimony of the defendant Turner was taken at the complainant’s instance, and establishes the allegations of the bill as to the purchase of Camp’s interest in “ Whale Bone,” and making the note in question. True, the bill alledges that the payee was to keep the note for the use and benefit of the complainant, until he attained his majority, and then it [1057] should be delivered to him; while the witness merely proves that the moneyas indicated by the note was to be paid for the use and benefit of the complainant. This discrepancy between the allegation and proof is in our judgment unimportant. The material inquiry was, whether the complainant, in virtue of the contract between his father and Camp, was entitled to the proceeds of the note, and to this, the evidence is direct. Although the answer of Camp may upon this point be a denial of the allegation of the bill, yet we incline to the opinion, that the deposition, corroborated as it is by the note, which expresses a contract in harmony with that proved, is quite sufficient to turn the scale in favor of the plaintiff. It was intimated at the bar that the deposition referred to, was taken without a special order authorizing it. This suggestion is certainly supported by the record; but as no objection was made in the court below to the reading of the deposition for this irregularity, it could not be excluded here, even if the objection were pressed; and the matter is here mentioned only to prevent surprise on the part of the complainant in the further progress of the cause. The remaining question is, should the cause have been heard without bringing in the personal representatives of the defendant Camp. This defendant was certainly a necessary party when living. He was one of the two parties to the contract which induced the making of the note — he was its payee, alledged to be the trustee for the complainant, and admitted to be the assignor of Eldridge, whose judgment is enjoined. Unless he had been made a defendant, he would not be concluded by a decree affecting his interest, and the controversy could not in this suit be definitively settled. [2 Ala. Rep. 209.] The matter would be open to further litigation between Eldridge and his assignor’s representatives, and between the latter and the complainant. As the object of a court of equity is to do complete justice and to settle the controversy forever, the cause should have stood over for parties, or been dismissed, unless they were seasonably made, or a sufficient excuse shown for the omission. [1058] Camp’s death was suggested, and leave given to make his representatives defendants to the bill — no reason is shown why the complainant did not avail himself of this permission to revive — it does not appear that Camp died insolvent, and that there has been no administration. In the absence of any thing in the record of which to predicate such a presumption, it cannot be indulged. That the defect of parties may be remedied, and the suit be regularly proceeded in, the decree is reversed and the cause remanded.