The Montgomery advertiser., 1901-10-16
VANKIRK LAND & CONSTRUCTION
 co. ct al. V. JOSIAH MORRIS

& co. ct al.
 Bill in Equity to enforce Collection or a
 Judgment-Appeal from the City court
 of Montgomery in Equity.
 1. Bill to enforce judgment and to com pei creditor of prior lien to exhaust se curities held by him; when Dill wl.nout creditors of a corporation to enforce the payment of such judgment, 1t appeared that in 1890 the corporation executed mortgage upon it's lands to certain nameo creditors Subsequently there was anoth- CT mortgage given to one Knowles, whcn purported to have been executed Dy sain corporation. It was averred in the piii that this later mortgage was never au- thorized by said corporation; that the Tn. debtedness 1t purported to secure was not a debt of the corporation but was an m, debtedness of it's President 10 artl sa1a gage was procured by artifice and that said president of the corporation to secure said indebtedness to Knowles, deposited with him o, a large hor nun sn- curity Subsequently, the corporation ana Knowles entered into written agree ment in which, while 1t was recited that said mortgage to Knowles. and denied that the debt purported to be secured by 1t was its debt, said corporation, Tor req sons stated therein, agreed to pay on or by Knowles to be due him upon said mortgage debt and Knowles agreed upon the payment of said amount to transfer to the corporation his claim against the with the securities deposited by said President for its payment. The said cor poration failed to pay Knowles the amount so agreed upon, and Knowles re, sum. together with interest, no part or which had been paid at the time Of the filing of the bill In the meantime. the first mortgage executed py the corpopa- @ erty conveyed therein had been bought at the foreclosure sale by a third party Upon Knowles seeking to redeem said property from the purchaser at the Tore, closure sale, an agreement was entered into between them by which 1t was agreed that Knowles should have his judgment paid out of said land so pur- chased at the foreclosure sale. The pill prayed for an accounting to ascertain the properties pledged by the President Of | the corporation to Knowles, and the amount due Knowles and the conditions of the contract between him and the pur- | chaser at the foreclosure sale, and that Knowles be required to exhaust the secu- | rity afforded him by his contract with | said purchaser at the foreclosure sale, before he be allowed to resort to any of the stocks and securities which had been given to him as collaterals by the Pres-i dent of the corporation. and that said stocks and securities be sold for the pay ment of complainants judgments. Held: CD That the said bill did not present a case for marshalling securities: @ that as a bill to compel Knowles to obtain satisfaction of bis debt out of his con- tract with the purchaser at the foreclos- ure sale it is without equity; (9 that under the facts so averred. the complain ants show no interest in the stocks and securities delivered by the president of the corporation to Knowles, which they can subject to the payment of their judgment; and therefore, the bill is without equity
 Reversed and rendered.
 Opinion by Tyson. J.