[Anniston Carriage Works et al. v. Ward et al.] So. Rep. 68; Harmon v. McRae, 91 Ala. 401, 8 So. Rep. 548. The case of Danner & Co. v. Brewer & Co., 69 Ala. 191, does not apply. In that case the mortgagee afterwards received a deed to the property and appropriated it to his own use. Even a trustee in incitum is only liable for the amount actually received.-Hill v. Jones, 65 Ala. 214. The bill in this case should have been dismissed for want of necessary parties.-3 Brick. Dig. 33; Merritt v. Phenix, 48 Ala. 87; Prout v. Hoge, 57 Ala. 28; Thornton v. Neal, 49 Ala. 590; 3 Brick. Dig., 373, 97, 98. CASSADY, BLACKWELL & KEITH, contra, cited Danner v. Brewer, 69 Ala 191; Andrews v. Hobson, 23 Ala 219; Ross v Barclay, 55 Amer. Dec. 616, and authorities there cited; Shepherd v. McEvers, 8 Amer. Dec. 561. COLEMAN, J.-On or about the 2d day of November, 1891, the Anniston Carriage Works, a body corporate, being then indebted to complainants, the appellees, and other creditors, to secure a past indebtedness due and owing to the Anniston Loan & Trust Co., also a body corporate, executed to it a mortgage upon substantially all its property and effects. Complainants, creditors of the Anniston Carriage Works, filed the present bill, seeking to have the mortgage conveyance to the Loan & Trust Co. declared a general assignment for the benefit of all its creditors. The mortgage to the Anniston Loan & Trust Co. was executed in the name of "Anniston Carriage Works, by Randolph St. John, Secretary and Treasurer." The evidence is sufficiently satisfactory that this mortgage was executed by authority granted by the board of directors. It was certainly subsequently recognized and ratified as binding. The main defense relied upon is, that the mortgage debt was satisfied and the mortgage cancelled on or about the 1st of December, 1891, long before the filing of the present creditors' bill. The facts upon which this defense is based, briefly stated, are as follows: The mortgage to the Anniston Loan & Trust Co. was executed on the 2d of November, 1891, to secure a debt of $5,000, and it became due on the 2d day of January, 1892. The Loan & Trust Co. took immediate possession of the property. On the 1st of December, prior to the maturity of the mortgage, the Anniston [Anniston Carriage Works et al. v. Ward et al.] Carriage Works borrowed from William Noble four thousand dollars, and to secure the payment of this indebtedness the Anniston Carriage Works executed another mortgage to William Noble on the identical property, which had been mortgaged to the Loan & Trust Co., except such portion as had been previously sold. The check of William Noble for four thousand dollars, together with the check of the carriage company for one thousand dollars, was applied to the Loan & Trust Co. in payment and satisfaction of the debt due it from the carriage company, and the mortgage of the carriage company to secure this debt was cancelled. Section 1737 of the Code reads as follows: "Every general assignment made by a debtor, by which a preference or priority of payment is given to one or more creditors, over the remaining creditors of the grantor, shall be and enure to the benefit of all the creditors of the grantor equally; but this section shall not apply to or embrace mortgages given to secure a debt contracted contemporaneously with the execution of the mortgage, and for the security of which the mortgage was given. It is averred in the bill, and the proof shows, that the debt due the Loan & Trust Co., to secure which the mortgage to that company was executed, was not contracted contemporaneously, but was a past due debt. The proof also shows that the mortgage embraced substantially all the grantor's property, and that the grantor, the carriage company, at the time was insolvent. It is clear that this mortgage was a general assignment within the meaning of the statute, and if complainants had filed their bill before the execution of the mortgage to William Noble, and before the attempted cancellation of the mortgage to the Loan & Trust Co., asking for its foreclosure for the benefit of creditors, we would be compelled to declare that the conveyance created a general assignment, and that it could be enforced for the benefit of the non-preferred creditors. These complainants and other creditors not named in the mortgage had the same rights and were entitled to the same privileges in the conveyed property, by virtue of the statute, as if they had been named and specifically provided for along with the Anniston Loan & Trust Co., so far as the Anniston Loan & Trust Co. is concerned. Possibly the effect upon third parties, not charged with notice, would be differ ent. [Anniston Carriage Works et al. v. Ward et al.] Neither would this result be altered, if, under the power contained in the mortgage, the Anniston Loan & Trust Co. had foreclosed the mortgage and applied the proceeds to the payment of the debt secured by the mortgage. A court of equity, at the instance of non-preferred creditors, would decree the conveyance a general assignment, and the mortgagee an assignee or trustee of the proceeds of the mortgage property for their benefit.Danner & Co. v. Brewer, 69 Ala. 191; Holt v. Bancroft, 30 Ala. 193. Can it make any difference in principle because the grantor, by a second mortgage on the same property, borrows money from a third person and pays it over to the preferred creditor in satisfaction of a conveyance, which the law declares "shall enure to the benefit of all the creditors of the grantor equally?" The transaction shows that it was the understanding of all the parties that the money loaned by William Noble was to be paid over to the Anniston Loan & Trust Co., and that company was to cancel its mortgage, so that the carriage company could, by a second mortgage, secure William Noble in the loan of four thousand dollars. Suppose in the first instance, William Noble had purchased the entire property for a cash consideration of four thousand dollars, which is proven to have been worth then full five thousand dollars, it could not be said he had paid a fair equivalent for the property. It is apparent that when the property was mortgaged to the Loan & Trust Co. it was worth five thousand dollars, the full equivalent of the debt secured by the conveyance. In the meantime, before the execution of the mortgage to William Noble, one thousand dollars of this property had been disposed of. It was in the possession of the Loan & Trust Co. It could not have been disposed of without its consent. We infer the check of the carriage company for one thousand dollars covered the value of the property which had been thus disposed of before the execution of the mortgage to William Noble. Thus, under and by virtue of the mortgage, which we declare to have created a general assignment for the benefit of all the creditors, the Loan & Trust Co. has realized the entire proceeds of the property conveyed. Equity looks at the substance and effect of a transaction. It will not permit the rights of creditors, secured to them by the law, [Louisville & Nashville Railroad Co. v. Rice.] to be circumvented or overreached. We hold that the bill is properly filed against the Anniston Loan & Trust Co., and that the proof sustains the averment that the mortgage was a general assignment, enuring to the benefit of all the creditors. William Noble has no interest in what disposition is made of the money paid by him for the property. The mortgage to him was to secure a debt contracted contemporaneously with the execution of the mortgage, and it may be was not within the influence of section 1737 of the Code; but this section can not alter the effect of the mortgage to the Loan & Trust Co. It was this latter mortgage that enabled the Loan & Trust Co. to monopolize the entire assets of the carriage company. The money stands in lieu of the property, and is equally subject to the claim of other creditors. It is the proceeds of the property in the hands of the Anniston Loan & Trust Co., which is sought to be reached and subjected by the bill. Notice should be given to all the creditors who are entitled to share in the proceeds to come in and prove their claims. This we understand to be the effect of the decree of the city court, and in so holding there was no error. Affirmed. 101 676 125 709 101 676 144 330 Louisville & Nashville Railroad Co. v. Rice. Action against a Railroad Company for killing Cattle. 1. Action against a railroad company for killing cattle; negligence; when determined by the jury.—Where, in an action against a railroad company for killing cattle, it is shown that the cattle were killed by defendant's train, and the testimony for the plaintiff tends to show that at the place of the killing the track was straight and the view unobstructed for a mile, while the testimony for the defendant was to the effect that the cattle were grazing a short distance from the track, and, when the train was a quarter of a mile from them, they showed no restlessness Or disposition to move towards the track, and that when the train was close upon them they started upon the track whereupon the engineer, [Louisville & Nashville Railroad Co. v. Rice.] who had kept a steady look out, used all the means within his power to stop the train, it is for the jury to determine whether the cattle killed came on the track so suddenly and near to the engine that the persons operating the train could not, by the exercise of reasonable care and diligence, prevent the injury; and the defendant is not, therefore, entitled to the general affirmative charge. 2. Same; charge to the jury.—In such a case a charge that the jury must find for defendant, if they believed the defendant's evidence is properly refused, since it confines the jury to the consideration of only a part of the testimony, when they should, in making up their verdict, consider all the evidence together. 3. Same. The court properly charged the jury that, "To prove that the engineer was on the lookout at the time when he actually discovered the cattle, is not enough to show that he fully performed his duty. If he failed to discover the cattle sooner, when he might have done so, if he had kept a proper lookout prior to the actual discovery of the cattle, then the defendant is chargeable with negligence." 4. Same.—A charge is properly refused, which instructs the jury that if the engineer saw the cattle a quarter of a mile before reaching them, when they were standing near, and indicating no intention of moving to the track, and would not probably have been injured where they were, he was under no further duty to look out for their safety. 5. Same.-A charge that requires the plaintiff to prove negligence on the part of the defendant, committed prior to the time the cattle got upon the track, is properly refused, since, if the injury resulted from the negligence of defendant's employés, committed subsequently to the time the cattle got upon the track, the defendant is liable, although there may have been no negligence prior to that time. APPEAL from the City Court of Birmingham. This was an action brought by the appellee, S. S. Rice, against the Louisville & Nashville Railroad Co., to recover damages for the alleged negligent killing of three cows, the property of the plaintiff. The complaint contained two counts, and issue was joined on the plea of the general issue. On the trial of the cause the testimony for the plaintiff tended to show that the cows killed by the defendant were his property; that at the place where the cows were killed the track was straight for about a mile, and there was nothing to obstruct the view for that distance; that he saw the COWS about three hours before they were killed, and that after they were killed he found them lying near the defendant's track. It was admitted that the train of the defendant killed the cows. |