Rutledge v. Cramton

56 So. 128, 173 Ala. 306, 1911 Ala. LEXIS 314

• Court: Supreme Court of Alabama
• Decided: June 29, 1911
• Status: Published

Opinions

McCLELLAN, J.

The original proceeding was in equity and sought, among other things, the partition of real property. During the pendency of the cause the-parties agreed to and did sell the property, and, by agreement, one-third in value of the purchase-money notes — corresponding to the interest, claimed by the Butledges in the real estate and payable upon the termination of the litigation, and bearing interest at 8 per cent — was turned over to Fred S. Ball to await the event of the litigation. This court, in Crampton v. Rutledge, 169 Ala. 486, 53 South. 922, in definition of Ball’s relation to the court and to the subject-matter of the controversy said: “ * . * * He thereby became the custodian of the subject of the litigation. He was, in effect, an officer of the court, and subject to its orders and decrees in dealing with the subject of the suit — just as much so as would be a commissioner who sold the land for division and held the proceeds of the sale, as the purpose and effect of the transaction was to substitute the fund for the land and make Ball a stakeholder. * *

Under the circumstances shown by the record, it is entirely safe to say that Ball’s act in accepting payment of the Epperson note after the rendition of the final decree of March 4, 1910, and in surrendering it, wrought no just prejudice to appellants in respect of the interest the obligor had engaged to pay up to the termination of the litigation. Ball accepted payment of the note in question on March 12, 1910. The testimony leaves no room for doubt that the payor of the note had then determined to pay the obligation and to stop the running of interest against him, as was his right to do. Indeed, it was shown that the solicitor for the appellants had suggested to the attorney of the payor of the note that the note be paid. The attorney of the payor almost immediately secured from his client the fund (or check) to pay the note. It may not have been stipulated, or even implied in the suggestion indicated, to whom the payment of the note should be made. However this may be, it was at least reasonable that the offer of payment should have been made to the custodian of the note (Ball) designated by the written agreement of the parties to the cause; and this is especially true, since it was known to the parties that another note, held by Ball under the agreement, had been satisfied by a payment to Ball — a payment that does not appear to have been questioned at any time. Aside from this, it does appear, with reasonable certainty, that had Ball declined to accept the payment of the note, the. sum then due upon it would have been paid into the registry of the court; and, hence, the accrual of interest, against the payor, would have then ceased. So, in either event it cannot be ruled, under the evidence before us, that Ball’s act in accepting payment of the note, when he did, deprived appellants of any obligation of the payor of the note to longer pay interest- The contingency upon which the note was payable had occurred. \ <

Ball was required, by the court in decree appealed from, to account for, all sums received ~by Mm in his relation as custodian — a relation that did not lay upon him any duty to earn profits upon the subject of his custody. He, it affirmatively appears, secured no financial benefit from the possession of the money. The deposit interest, from the bank, was paid in by him.

The decree of March 4, 1910, directed Ball to turn over the note, the payment of which he accepted on March 12, 1910. Of this decree he sought revision in this court. It was not until the pronouncement of the decree from which this appeal is prosecuted was there any affirmative and final account taken of the money, the proceeds of the note so paid to Ball.

Certainly the exercise by Ball and Cramton of the conceived right of revision in this court, of the decree of March 4, 1911, was no contempt of court- or breach of duty. — 28 Am. & Eng. Encyc. Law, p. 1083. The acceptance by Ball of the payment of the note preserved the principal thereof; and it is only upon the theory that appellants lost interest, as upon the payor’s obligation, by Ball’s acceptance of payment that a contention could be made to charge Ball -therewith. According to the evidence, a refusal by Ball to have accepted the payment as made by the payor’s attorney would not have prolonged the period of the payor’s obligation to pay interest. Hence, if it was error of judgment, on the part of Ball and of the payor’s attorney in effecting the delivery and acceptance of the money to and by Ball, and thereupon the surrender -of the note to the attorney of the payor, it wrought no prejudice to the appellants.

In consequence, the declination of the court to charge Ball with interest on the proceeds of the Epperson note, additional to that accruing from its deposit in bank, was not error to the prejudice of appellants.

The decree, in the particular it is assailed on this appeal, is therefore affirmed.

Affirmed.

Anderson, Sayre and Somerville, JJ., concur.