Bank of Luverne v. Birmingham Fertilizer Co.

39 So. 126, 143 Ala. 153

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

McCLELLAN, C. J.

Assuming that on the facts averred in this bill the notes, accounts and other evidences of debt which Beall Brothers transferred to the Bank of Luverne were, while they were held and owned by Beall Brothers, impressed with a trust in favor of complainant to the extent and in the manner claimed in the bill, it is clear, we think, that tliey were not so impressed in the hands of the Luverne Bank, unless at the time it purchased them it had knowledge or notice of the existence of this trust as between its assignor and the complainant. We understand this proposition to be admitted. It follows necessarily that the bill has no equity against the bank for an accounting in respect of such trust property, unless it avers that the bank had knowledge or, at least, notice of the trust. We find no such averment in the bill. The only averment made in this connection is this: “And orator alleges that said Bank of Luverne was. charged with notice of the trust which orator held therein at the time when said Bank of Luverne acquired an interest therein.” This is not a charge of knowledge, of course. Equally clear, it seems to us, it is not an averment that the bank had notice of the trust, either as a fact, or as a conclusion of fact. It is, to the contrary, essentially and only an averment of what the pleader supposes to be a proposition of law, that on the facts stated, to-AVit, the original existence of the trust as between Beall Brothers and complainant, and the transfers by Beall Brothers to the bank, the law itself charges the hark with notice of the trust. If this were true, there Avas no occasion to make this averment, since the conclusion that the bill showed notice Avould be drawn by the court from the facts themselves, and the injection of this allegation amounts to nothing. But this is not true. The laAV does not impute notice upon those facts, and the court is not to be diverted from its necessary conclusion that they do not import notice by the pleader’s erroneous assertion as to what the law is. There is no averment of notice on the part of the bank of this alleged trust. In its absence the bill is without equity. The decree Avill be reversed and a decree will be here entered dismissing the bill.

Reversed and rendered.

Haralson, Dowdell and Denson, J. J., concurring.