Culver v. Guyer

129 Ala. 602

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

McOLELLAN, C. J.

The verification of the bill of complaint was sufficient without the subscription of the affiant to the affidavit; the rule of practice not requiring subscription.—Rule 15, Code, p. 1205; 1 Ency. Pl. & Pr. 315; Watts v. Womack, 44 Ala. 605.

The bill being thus properly verified, its averments as to respondent’s insolvency and the imminent danger of his immediately disposing of the trust property before a receiver .could be appointed if he had notice of the application for a receiver, the facts being stated, authorized the appointment of a receiver without notice.—Hendrix v. A. F. L. M. Co., 95 Ala. 313; Werborn v. Kahn, 93 Ala. 201; Pollard v. Southern Fertilizer Co., 122 Ala. 409; Bank of Florence v. U. S. S. & L. Co., 104 Ala. 297; Ashurst v. Lehman, Durr & Co., 86 Ala. 370. We do not consider the question discussed by appellee’s 'Counsel whether an order appointing a receiver can be reviewed on an appeal taken from the final decree after thirty days from the appointment, as it is not necessary to decide it.

That the bill has equity to charge the respondent as trustee for the 'amount he received on the surrender of the policy in excess of the amount he paid the assured for or upon the collateral security of the policy, and this whether the policy was transferred to the respondent absolutely or merely to secure a debt due him from the assured, is fully settled in the case of Helmetag’s, Admr. v. Miller, 76 Ala. 183, which is cited with approval in White v. Equitable Nuptial Benefit Union, 76 Ala. 262-3, in Ala. Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 332, and in Stoelker v. Thornton, 88 Ala. 246.

The excess of money received by the respondent on the policy beyond what he paid 'complainant for it or 'beyond the debt which complainant owed him secured by the policy, as the case may he, having been "received by respondent in trust for complainant, it is elementary that complainant can follow the fund • 'into whatever property respondent has converted it, and subject such property. ■

Of course the fact of conversion into other property, and the identity of the other property.'sought to-be subjected with that into which the conversion was made must be proved’ to the reasonable satisfaction of the court; and we concur with the chancellor that a part of the fund here in question was invested by respondent in< the horse now in possession of the receiver and in other live stock which was sold by respondent and for the price of which he took the securities ■ now in the hands of the receiver. ■ •

The decree of the chancery court will, therefore, be affirmed. ■

Affirmed.