Coker v. Shropshire

BRICKELL, C. J.— The precise theory on which the bill is filed, it is difficult to determine. It may have been intended as a bill by a creditor seeking in equity to marshal the assets of a deceased debtor, and to subject lands he had aliened in fraud of creditors, and this in some of its aspects seems to have been the view of the pleader. Or, it may be that it was intended as a biil by an alienee of a mortgagor to redeem, seeking from the mortgagor an account of rents and profits, and of property embraced in the mortgage which he had converted and should be required to apply in extinguishment of the mortgage debt. Whether the one or the other be the theory of the bill, its allegatioirs are too vague and indeterminate to justify any decree. The validity of the deeds of trust to Whitlock, for the protection of the sureties of Poore as guardian, is sustained by several decisions of this court.—Perkins v. Elliott, 5 Port. 182; Frow v. Smith, 10 Ala. 571; Hawkins v. May, 12 Ala. 673; Reynolds v. Cook, 31 Ala. 634. The purchase from Poore, by the complainant, of a part of the lands subsequently, passed to him only the equity of redemption. A court of equity will for his ease compel the trustee and ber.ficiaries in the deeds of trust, to exhaust the other property conveyed, before resorting to the lands he has acquired. The-principle is of general application, that where one party has a lien on or interest in two estates, and another has a lien on or interest in one only of the estates, a court of equity will not permit the former by his mere election to defeat and disappoint the rights and claims of the latter. The one must first proceed against and exhaust the estate, the other can not reach, if that is necessary to adjust the rights of both parties.—Pullen v. Agricultural Bank, 8 Sm. & Marsh. 337. It is not shown by the present bill, that the property conveyed by the deeds of trust, other than the lands aliened to [547] the complainant, is of sufficient value to indemnify the beneficiaries in the deeds of trust. Without a clear and distinct averment of this fact, the principle can not be invoked. As an alienee of the mortgagor seeking to redeem, the bill is wanting in necessary averments, and in an appropriate prayer. If in this capacity the complainant was seeking relief, he would be entitled to an account of all rents and profits received by the trustee, or the beneficiaries after the law day of the deeds of trust had expired. So, he would be entitled to an account of all personal property, if any, Poore had with the consent of the cestuis que trust, converted after they had notice of the alienation to him. And he would be entitled to a like account of any personal property the trustee with the knowledge and consent of the cestuis que trust, or the cestuis que trust may have converted after notice of his purchase. Of course we mean rents and profits of t*he real estate, and personal property conveyed by the deeds of trust, and not other real estate, or personal property which may have been held by Poore. It may be the complainant can present a case entitling himself to relief, and that he may not be prejudiced by the insufficiency of the bill as it now stands, the decree of the chancellor is corrected so as to dismiss the bill without prejudice, and as thus corrected is affirmed.