Kirksey v. Stewart & Lucius

38 Ala. 692

Opinion

STONE, J.

No question can arise in this case on the doctrine of marshalling securities. If the female complainant has any right to the slaves in controversy, it rests either on the alleged gift by Mr. Patterson, her father, made in 1S36, or on the trust deed executed by Mr. Patterson to Mr. Womack in 1840. If either of these alleged titles be worth anything, it must prevail over the attempt of Stewart & Lucius to subject the property to the payment of Mr. Patterson’s debt, contracted many years after-wards. The claim of the complainant is not an alleged lien, but a title to the property; either an absolute title, that must prevail over all others, or a groundless pretense. Such a case furnishes none of the ingredients for a bill to marshal securities. — Willard’s Equity, 337; 1 Story’s Equity, § 633.

[2.] So far as the bill rests on the alleged gift to Mrs. Kirksey, the remedy at law is simple, adequate, and complete. In the other aspect of the case — that which relies on the trust deed executed to Mr. Womack — the bill not only fails to allege that Mr. Womack refuses to assert his title at law, but, on the contrary, charges positively that he has interposed his claim at law, which is now pending and undetermined. In such case, a beneficiary under the deed has no excuse for invoking the powers of the chancery court. — Rainey v. Rainey, 35 Ala. 282 ; Calhoun v. Cozzens, 3 Ala. 498.

The decree of the chancellor is affirmed.