Ragland v. Cantrell

B. F. SAFFOLD, J. — The purpose of the bill was to enjoin a sale of lands under execution. In October, 1866, the sheriff of Perry County, having in his hands executions issued upon judgments against A. J. Pool at various times, levied some of them on nearly or quite all of his property, real and personal, and sold the same for their satisfaction publicly, John D. Ragland becoming the purchaser. These judgments were rendered respectively in the Probate Court of Dallas County, in September, 1861, during the late war, in favor of distributees of the estate of D. S. McNeill, on the final settlement of Pool as his administrator; in the Circuit Court of Perry County, at the Fall Term, 1865, by confession, in favor of John F. Cantrell; and in the same court, at the Spring Term, 1866, also by confession, in favor of John D. Ragland. The proceeds of the sale were applied by the sheriff, first, to the satisfaction of the McNeill judgments, which had been previously bought by Ragland, and which were supposed to have priority; and, next, to the partial satisfaction of Ragland’s judgment, in consequence of his indemnity against Cantrell’s. [302] Afterwards, Cantrell caused another execution to be issued on his judgment, and levied on the same land; and he was proceeding to have it sold again, when he was restrained by the injunction obtained on this bill. In addition to these facts, Ragland, as complainant, charged that Cantrell’s judgment was fraudulently obtained on a simulated debt, through collusion with Pool and John P. Shropshire. ■ These defendants, answering without oath, which was waived, denied the charge, and alleged generally, though not by cross-bill, that Ragland’s judgment was largely made up of usury and Confederate currency; and further, that he and Pool had corruptly conspired together to prevent a fair sale of the property at adequate prices. The bill was demurred to for want of equity, and because there was adequate remedy at law. It was heard on its merits, and the chancellor found that Cantrell’s judgment was fraudulent, but that Ragland’s conduct in respect to the sale was also reprehensible and fraudulent; and for this reason he did not deserve relief. He consequently dismissed the bill. We find no fault with his decision respecting the character of Cantrell’s judgment. It was by confession, which is indicative of agreement between the parties. The three persons best able to explain its consideration, the creditor, the debtor, and Shropshire, were not examined as witnesses, though interrogatories were filed to them. Several witnesses, conversant with Cantrell’s pecuniary condition, testified that he was unable to lend so large a sum of money, and could not have had transactions of such magnitude with Pool without their knowledge, which must have been the case if the debt was genuine. The complainant’s testimony exposes contradictory statements made by Cantrell and Pool, respecting the consideration of the debt and its ownership. Without detailing more of the evidence, we think Pool was not indebted to Cantrell. But, without reference to the fraud, Cantrell’s execution was in the hands of the sheriff at the time of the sale, and was entitled to appropriate the proceeds, because the McNeill judgments could not, as held by this court, support executions, and Ragland’s • execution, though levied, was junior. R. C. § 2873; Martin v. Hewett, 44 Ala. 418. Supposing such appropriation made, because, if it may be, it must be for the protection of the purchaser, Cantrell cannot be allowed to sell the property levied on again. Carraway v. McGee, at the January Term, 1872. There can be no doubt about the equity of the bill. The purchaser has no means of forcing the vendee of the second sale to action, and for an indefinite time he would be subject to a suit at law, which would deter him from the proper improvement and enjoyment of his property, and effectually destroy [303] his chances to sell or exchange it. Mobile & G. R. R. Co. v. Peebles, 47 Ala. 317. 2. What is there in Ragland’s circumstances to affect his right to the relief he prays for ? He has proved the good faith and substantial consideration of his large claims against Pool. He obtained a confession of judgment from him, by threatening to attach his property, and perhaps by wheedling and coaxing him with promises of leniency. Possibly, he may have put him in some fear, short of duress. But he could have attached his property, and that would have given him all the advantage he sought by the judgment, — a lien, and time to recover judgment. Having obtained, the judgment, he may or may not have apprehended resistance and delay from Pool. He had a right to a levy and sale as soon as he could induce the sheriff to act. If he made arrangement with Pool, not calculated to hinder, delay, or defraud others interested in the property, there was no impropriety in his doing so. He did agree with Pool, in writing, after the sale, to let him superintend the cultivation of the lands for about one year, and to assist him in reselling them for a greater price. This agreement may have been assented to by them before the sale. But all of the profits, in either case, were to go to Rag-land, in further credit on Pool’s indebtedness to him. The contract expressly declared, that notwithstanding this agreement, the property was to remain Ragland’s exclusively, by virtue of his purchase at the sheriff’s sale, and his title thereto was to be “ in no manner thereby affected or impaired.” Many witnesses, who were present at the sale, testified, without exception, that they knew of no circumstance tending to prove collusion between Ragland and Pool, or any device of either to depreciate the property. While they differ considerably in their estimates of the cash value of the land, no one says the price was inadequate, considering the incumbrances of dower and the attachment of Mrs. Susan Pool. The agreement alone is relied on, as suggestive of fraud. Pool was evidently indulging a speculative hope that the price of land had not really fallen so low; and Ragland, not knowing what better to do, was willing to take the chance of a larger payment on his demands. Pool was hopelessly insolvent, even to Ragland, though perhaps he was not entirely conscious of it; and Rag-land employed him for one year, to see if he could not aid him in disposing of the property to a better advantage. This is the substance of their contract. No resale was made. No entanglement of the title to the property, in consequence of the agreement, is shown. It is not made to appear that any other creditor, or person interested, has suffered in any way which could have been helped. Rogers, who agreed to pay a large [304] price for a portion of the land, has been unable to pay anything, notwithstanding he has had a long credit. We think the chancellor erred in finding fraud on the part of Ragland. Montgomery’’s Executors v. Kirksey, 26 Ala. 172. The prayer of the bill is not defective. The complainant has only a right to enjoin a levy and sale of the property, once sold, under any execution on Cantrell’s judgment. This he specifically asks for. The decree is reversed, and, lest we might do injustice by rendering a decree here, the cause is remanded.