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Cockrill vs. Armstrong.
their right individually, being one-third each, but only warrant the title to the real and personal estate, and interest, against themselves and all persons claiming title by or through them. (Signed,) JAMES TROOPER ARMSTRONG,
F. W. ARMSTRONG,
D. I. ARMSTRONG,
Construing this deed, and giving effect to it, according to the language used, and the powers and duties of the grantors, we must hold that two-thirds of the lands were sold, by all of the executors, all joining in the deed as such, for the purpose of paying the debts of the estate of William Armstrong ; the debts are so described in the deed.
Cockrill, in his deposition, swears that the sale of the land was made by the executors for the purpose of paying the debts; the debts are the same described in the deed, with the addition of that due the Real Estate Bank, and amounted, all together, to about $65,000.
Looking to the answer of Cockrill and to deeds to Wilson and McGregor, Alloway & Co., a question may arise as to whether the debts described in the deed of mortgage were not contracted by the trustees in their trust capacity in carrying on the plantation, as under the provisions of the will the executors were required to keep the estate together as an entirety, and cultivate it until Frank, the youngest son, became of age, the time when the debts were contracted.
The fact that the estate of the testator was charged as security for the payment of the debts, the positive declarations of the executors to Cockrill that these were debts of the estate of William Armstrong, deceased, and they, as executors, were making sale of the lands to pay off the debts, added to the fact that the debts
Cockrill vs. Armstrong.
are due by the estate of William Armstrong, fix the general purpose of the sale, and it is probable that the $13,000 paid to James and Frank Armstrong were given them for their interest in the lands, to cover which they also convey as devisees in their own right.
These executors had power to make such sale, and Cockrill acquired an absolute title to the property. It was a sale to pay the debts of the estate, and, like any other trust sale, is valid until set aside for fraud.
Suppose all of these debts were not properly chargeable to the estate of William Armstrong, deceased, and the sale had been in fraud of the rights of this widow, certainly she would be required, by proceedings in equity, to set aside the sale for fraud, and should attempt this, and establish the abuse of trust by the executors.
There can be no doubt but that the mortgage, contracting a lien upon the land, before the marriage of plaintiff, to Wilson, for $10,000, and the debt of the Real Estate Bank for $25,000, was a charge upon the land, two-thirds of which were paid by Cockrill, and that, before he could be disturbed in his title, the widow would be required to refund to him the money paid and the interest upon it.
These debls were an incumbrance upon the estate, out of which she claims dower; and it is a rule that where the holder of an equity of redemption has redeemed the land from the mortgage incumbrance, the lien of which was senior to the dower interest of the widow of the mortgagor, she is endowed only of the equity of redemption. Scribner, vol. 1, 568.'
After a careful consideration of the case in its several aspects, we must hold that the plaintiff is not entitled to dower.
First-Because the land was sold by the executors of the estate of William Armstrong to pay the debts of the estate, which were
an incumbrance upon the title of the husband, under which defendant, Cockrill, acquired an absolute title to the land, free of the charge of dower.
Second—Because the husband was never at any time seized of an estate of inheritance in said land; that his right to seizin was arrested and vested in him as executor by force of the statute, and that he held as executor until he parted with his equity of redemption, and all other estate by force of his deed to Cockrill, who, under such title, entered into actual possession of the land, and at the time of the death of the husband, was seized both in deed and in law.
Let the judgment and decree of the court below be reversed, and set aside, and suit dismissed.
1. LIEN NOT ASSIGNABLE:
-: By contract.
note constitutes a lien upon the cotton and corn raised upon said land this year,” does not create a lien upon the crop, it is merely a declaration as to the legal effect of the note.
- Rent note. No lien attaches to a note executed for the rent of land; the fact that it is given for rent adds nothing to its legal effect.
-: An unplanted crop for rent. A contract for a lien on a crop to be planted, to secure the rent of the land,
is void at law, but after the crop has matured may be enforced in equity. 5. ASSIGNMENT: The assignee of a note acquires an absolute title to the debt, and the exclu
sive right of action thereon.
Roberts et al. vs. Jacks.
-- As collateral security, does not carry landlord's lien The assignment of a note executed for the rent of land as collateral secu
rity, does not confer the landlord's lien upon the assignee, or entitle bim
to attach the crop raised on the land, for the debt. 7. Transfer of cause to equity docket, The mere transfer of a cause from the law to the equity docket does not constitute it an equitable cause of action. It simply enables the plaintiff
to present a cause for equitable relief. 8. RIGHT OF ACTION: By assignor in proceeding to enforce lien, etc. Where a note, which is a lien on property, is assigned as collateral security
for a debt, the assignor cannot maintain a proceeding in equity to enforce the lien,
APPEAL from Phillips Circuit Court.
Thomas Jacks brought an action of debt under the Code form upon the following instrument of writing:
PHILLIPS County, January 4, 1872. On the first day of November next I promise to pay to the order of Joseph W. Nevill, $990 for rent of land on said Nevill's plantation; this note constitutes a lien upon all the cotton and corn raised upon said land this year. [Signed]
Jas. P. ROBERTS. [SEAL.] Which note was endorsed : Pay to T. M. Jacks. [Signed]
J. W. NEVILL. With the further endorsement thereon :
“I hereby waive notice and protest, and will still be bound as endorser on this note. October 31, 1872. [Signed]
J. W. NEVILL." The action is brought in the name of Jacks as assignee against Roberts. The allegation in the declaration is, "that Joseph W
Roberts et al. vs. Jacks.
Nevill assigned and transferred said note to the plaintiff as security for a debt which he then owed plaintiff.” Several credits were entered on the note, and the following affidavit filed :
“Thomas Jacks being duly sworn, says on oath that the facts set forth in the foregoing complaint are true, and that the sum of $691.32-100 are now due him for rent, etc.," and that defendant James P. Roberts has removed from said plantation a part of the crop grown thereon during the year 1872, without his consent, and that he has a lien on said crop to secure the payment of said rent, etc.
Upon the filing of the complaint, and this affidavit, a writ of attachment issued against the defendant, to attach the crop of cotton grown on the plantation, was levied upon the cotton, and a bond entered into by Roberts with Charles Wooten, as his security, conditioned that Roberts should perform the judgment of the court in said suit, or that said Wooten would have the seven bales of cotton attached, or its value, $525, forthcoming, and subject to the order of the court, for the satisfaction, etc. This bond was given to Jacks.
After these proceedings the defendant appeared and filed his motion to dissolve the attachment, because the action is brought to enforce a landlord's lien for rent by an assignee of the note, and because the lien is personal and cannot be assigned, and that the affidavit is not sufficient.
This motion was by the court overruled, and, at the instance of plaintiff, the case was transferred to the equity docket and continued.
It will, at this point, be well to consider whether the plaintiff, as assignee, held a lien upon the defendant's crop of cotton, and a right to attach it, because, if he had no lien, the attachment should have been dissolved.