Dothan National Bank v. Crawford

50 So. 936, 164 Ala. 310, 1909 Ala. LEXIS 220

• Court: Supreme Court of Alabama
• Decided: November 18, 1909
• Status: Published

Opinion

SIMPSON, J.

The bill in this case was filed by the appellant against the appellee, and alleges that the complainant held a mortgage on the undivided interest of one A. B. Jones in certain personal property consisting of mules, wagons, turpentine stills, pumping outfits, barrels, and office furniture, and also 10 acres of land; that said Jones died, and the respondent, Crawford, as administrator, by order of the probate court, sold all of the interest of said Jones in said property for $541.40. The prayer of the bill is that said money be decreed to be held in trust for the payment of complainant’s debt, and that said administrator be required to appropriate tbe proceeds of said sale to tbe payment of complainant’s debt.-

Tbe interest of tbe estate of said Jones in said property ivas simply tbe property subject to the mortgage, and the sale by the administrator did . not interfere with the rights of the mortgagee; but the purhaser, if affected by notice of the mortgage,' took the property subject to any rights he might have. There is no averment that the property has been destroyed, so that the mortgage cannot be enforced against the same; and, even if there were such averment, the remedy would be an action at law. — Ehrman v. Oats, 101 Ala. 604, 14 South. 361. The case of Humes, et al., v. Scott, 130 Ala. 281, 30 South. 788, was the enforcement of an express trust, and has no analogy to this case.

The decree of the court is affirmed.

Affirmed. .

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.