Crafts v. Dexter.

to the acts of its own officers, and will not permit their truth to be disputed, otherwise the Court would be impeded at every step in its progress, by the trial of collateral issues of fact. When, however, the suit has ripened into a judgment, new considerations present themselves, and it becomes then a question of great difficulty, whether one, against whom an unjust judgment has been obtained, and who has been deprived of all means of defence in the proper tribunal, by the mistake or fraud of the sheriff, shall be compelled, from considerations of public policy, to pay the judgment, and seek redress from the officer, or whether the preventive justice of a court of chancery will not interpose, and afford an opportunity of proving the invalidity of the demand, without requiring him first to pay the judgment? The solution of this question, appears to depend upon the relative merits of the public interest, and the private injury involved, and we are aware, that it has been decided that in such a case, the private must yield to the public interest.

We abstain, however, from entering, at this time, into the merits of this controversy, because we think the principle has been settled in the case of Brooks v. Harrison, 2 Ala. 209, in favor of the relief. In that case, it was held, that one whose name had been forged to a forthcoming bond which had been returned forfeited, could be relieved in chancery against the statute judgment entered upon the forfeiture. This case involves the precise principle which must govern the case at bar, and which may be thus stated when by an unauthorized act of an officer of court, a judgment is improperly rendered against one, without his knowledge or consent, he may be relieved in chancery, though the plaintiff in the judgment was not privy to the act of the officer. That is this case, and therefore without further comment, we proceed to consider, whether the bill is in other respects correct, for it is not sufficient to alledge the improper conduct of the officer, but it must also be shown that injury has resulted from this misconduct.

The suit at law in this case, was against the complainant, as the drawer of a bill of exchange, by the holder, the acceptor having refused payment. The defence which the complainant relies on, is, that he was not notified of the dishonor of the bill, and supposed that it was paid, until he learned of the existence of the judgment against him. The allegations of the bill, on this point, are," that he did not consider himself liable, as he had never re

Crafts v. Dexter.

ceived notice of the protest of said bill, and did not know there was any intention to render him liable, until after said judgment had been rendered against him." Again, he states, "that he had a good defence to said bill of exchange; that he never did receive any notice that said bill of exchange had been protested for nonpayment, but on the contrary thereof he believed, after the said bill had fallen due, that the Selma and Tennessee Rail Road Company had paid said bill of exchange, which it was in duty bound to do," &c.

It is very clear, that the ability of the complainant to defend himself at law, did not depend upon the fact whether he had, or had not received the notice. The bill was payable at the Bank of Mobile; the complainant, it appears from the judgment, resided in Dallas county, and if notice of the dishonor of the bill, was, in point of fact, and in due time, according to law, transmitted to him by mail, his liability on the bill would have been fixed, though it had been in his power to have proved that he never received it. It is therefore not shown upon the bill, that the judgment is unjust, and if he was liable upon the bill of exchange, it is wholly unimportant in this proceeding, whether he had notice that the suit was pending against him, or not.

It does not vary the case, that if the allegation had been made that due notice of the dishonor of the bill was not given, the proof would have been with the defendant. It was a necessary allegation, because without it, there is no equity in the bill; as it must appear by an affirmative allegation, that the demand upon which the judgment is founded has no legal validity. If from the nature of the case he could not positively alledge it, as of his own knowledge, he should have stated the fact to be so according to his information and belief. It is perfectly consistent with every allegation in the bill, that the complainant knew that his liability had been fixed by due notice.

This question was considered in the case of Carpenter v. Devon, [6 Ala. 718,] where it was held, that negative allegations when necessary to establish a right, must be made in equity, as well as in pleading at law, and that a party averring the non-existence of a fact, will not always be bound to support the allegation by testimony.

This conclusion renders it unnecessary to examine the other

Bank of Mobile v. P. & M. Bank of Mobile.

questions made in the cause, as they will not probably arise again.

Let the decree of the chancellor be reversed, and as this question was not made in the Court below, the defendant having failed to appear, the cause will be remanded, that the complainant may, if he thinks proper, obtain leave to amend his bill.

THE BANK OF MOBILE v. THE PLANTERS' AND MERCHANTS' BANK OF MOBILE, ET AL.

1. R. executed a mortgage to the B. of M. in which, after describing certain lands with particularity, proceeded thus: "together with three hundred and fifty acres of land belonging to the said R., contiguous to the lands above described, or situated near the same:" Held, that upon a bill to foreclose, it was allowable for the mortgagee to prove what lands were embraced by the term "contiguous" to those specifically described; at least to adduce proof that R. was the proprietor of three hundred and fifty acres, and no more, adjoining, or near to the lands designated.

2. Where a mortgage describes lands generally as "contiguous" to others it specially designates, and a bill brought for its foreclosure particularizes them, and alledges that a third person (made a defendant) purchased them with a knowledge of the mortgagee's lien; it is sufficient to throw the onus of sustaining the allegation upon the complainant, for such defendant to answer, that he did not know that the lands in question were embraced by the complainant's mortgage, and insists upon proof of the fact; further, that he was a purchaser for a valuable consideration, without notice of the complainant's claim.

3. The failure of the defendant to answer an allegation, not charged to be within his knowledge, and which cannot be so intended, will not be construed into an admission of its truth; if, in such case, the answer is defective, the complainant should except, and pray the Court to require one more complete.

Writ of Error to the Court of Chancery sitting in Lowndes.

Bank of Mobile v. P. & M. Bank of Mobile.

The plaintiff in error filed a bill to foreclose the equity of redemption to certain lands, described as follows, viz: The west half of the north-west quarter of section three, of township fifteen, in range twelve, containing eighty-five 834-100 acres ; the west half of the south-west quarter of section thirty-five, township sixteen, and range twelve, containing eighty 20-100 acres; the north-east quarter of section two, in township fifteen, range twelve, containing one hundred and fifty-eight 30-100 acres; the south-east quarter of section thirty-three, in township sixteen, range twelve, containing one hundred and sixty acres; the west half of the south-west quarter of section thirty-three, of township sixteen, range twelve, containing eighty acres; the east half of the south-west quarter of section thirty-three, of township sixteen, in range twelve, containing eighty acres, "together with three hundred and fifty acres of land belonging to the said Robertson, contiguous to the lands above described, or situate near the same," -all of which lands it is alledged lie in the county of Dallas. These lands were conveyed by way of mortgage on the 21st day of February, 1838, by the defendant, Robertson, to secure the repayment of $11,680 60, which had been lent to him by the complainant.

The complainant's bill was afterwards amended, and in the amended bill it is alledged that the lands which are described in the mortgage as lying contiguous, &c. to those particularly designated, are the following, viz: the west half of the north-west quarter, and the west half of the south-west quarter of section four, in township fifteen, and range twelve; and the north-cast quarter of section five, in township fifteen, and range twelve, situate in the county of Dallas, and within the Cahawba land district. It is then stated, that the Planters' and Merchants' Bank of Mobile, and one Abigail McKenzie, with a knowledge of the fact that these lands were embraced by the complainant's mortgage, respectively purchased certain portions of the same; but what part each one of these claims is unknown, and the complainant therefore prays, that they may disclose and set forth their deeds thereto. To this is superadded a charge, that the Planters' and Merchants' Bank claim the whole of these lands, at a sale made under an execution against the estate of the defendant, Robertson; that they are all the lands that the mortgagor owned " contiguous" to those particularly described in the mortgage, and

66

Bank of Mobile v. P. & M. Bank of Mobile.

this fact was well known to the Planters' and Merchants' Bank at the time of its purchase. The original and amended bills each pray an account of what is due to the complainant, for principal and interest, and a decrce of foreclosure and sale, not only of the lands specifically described in the mortgage, but those referred to as contiguous, &c.

The Planters' and Merchants' Bank answers, that it knows nothing of the contracts or dealings of the defendant, Robertson, with the complainant, but avers that he was indebted to this respondent, in the sum of $2,780, due 15th February, 1839, which having failed to pay, a judgment was recovered therefor, and under an execution issued on that judgment, the lands described in the complainant's bill as embraced by the general designation in the mortgage, were levied on and sold by the sheriff of Dallas. At that sale, this respondent became the purchaser, and received the proper conveyance. Whether the lands were intended to be embraced by the mortgage the respondent does not know, but insists that the complainant shall be held to strict proof.

The defendant, Robertson, and McKenzie having failed to answer the bill, the same was taken for confessed as to them.

The cause was heard, by consent, upon bill and answer, and the Chancellor adjudged, that as the answer of the Planters' and Merchants' Bank denied all knowledge as to the fact, whether the lands which it claims under the purchase at the sheriff's sale, were embraced by the mortgage, the onus of proving the affirmative, rested upon the complainant. There being an entire want of proof on this point, thus far, the bill was dismissed without prejudice, as to the Planters' and Merchants' Bank. An account was then ordered to be taken, and a decree of foreclosure and sale rendered as to the lands about which there was no controversy.

C. G. EEWARDS, for the plaintiff in error. The registration of the mortgage operated a constructive notice to creditors and purchasers of the mortgagor, of the lien which it created upon the contiguous three hundred and fifty acres. The point upon which the Chancellor rested his opinion does not arise. It is not denied by the answer," that the mortgage refers to the lands in dispute," "that it included all the lands which Robertson owned," "that