[Cheney, Trustee, &c., v. Nathan.] accepting the trust, did not become debtors to any of the creditors of M., but held all of the property assigned to them for the equal benefit of all the creditors of M., and that, therefore, by the special assignment of the note and mortgage, the incumbrance upon the land was not removed, but they held the note and mortgage for the equal benefit of the creditors of M.; and hence, they can compel the payment of the mortgage by N. or enforce its foreclosure, and that N. is entitled, after the payment of the mortgage, to receive from the assignees in the way the other creditors of M. do, a proportionate interest in the assets of the trust estate. APPEAL from the Chancery Court of Montgomery. The facts of the case are sufficiently stated in the opinion. TOMPKINS & TROY, and HORACE STRINGFELLOW, for appellant.-1. The taking of the transfer of the mortgage executed by Mrs. Nathan and her husband to Mrs. Wolff by the original assignees, did not constitute, under the circumstances of this case, the payment of that debt by them, and such a payment did not operate, to extinguish the debt in the hands of the assignees.—Ellison v. Moses, 95 Ala. 221; Goldthwaite v. Ellison, 99 Ala. 497; Code of 1886, § 1737; 3 Amer. & Eng. Encyc. of Law, (2d ed.), 116; Pryor v. Davis, 109 Ala. 117. 2. A court of equity would keep the lien of Mrs. Wolff's mortgage alive, for the protection of the assignees, although there had been no expressed intention on the part of the assignees when they paid the money to Mrs. Wolff to preserve it as a lien upon the property.-1 Jones on Mort., §§ 848, 869; Gresham v. Ware, 79 Ala. 196. But it appears from the bill that the assignees did not rely upon this equity which keeps a mortgage paid. by the holder of an equity of redemption, or stranger to the mortgage, whenever it is necessary for his protection, without the expression of his intention. It appears from the bill that at the time they made the payment they expressed their intention not to pay the debt, nor in any manner to affect the mortgage as a security for the same, but merely to take an assignment thereof, an assignment taken for the protection of the trust confided to them. In such case there can be no doubt that the mortgage is kept alive as an addition to the title for the protection of the person paying it. The intimation thus [Cheney, Trustee, &c., v. Nathan.] expressed to keep it alive is important only when there is a legal duty, a contractual obligation upon the party agreeing to pay. In this case there was, as we have shown, no contractual obligation, no duty upon the assignees to pay.-1 Jones on Mortgages, §§ 856, 864; Cullum v. Emanuel, 1 Ala. 23. 3. The decree rendered by the chancery court on the bill filed by this appellant was not a bar against setting up the mortgage now sought to be affirmed.-Cannon v. Brame, 45 Ala. 262; Gilbreath v. Jones, 66 Ala. 129; McCall v. Jones, 72 Ala. 368; Pruitt v. Holly, 73 Ala. 369; Cheney v. Nathan, 110 Ala. 254. A. A. WILEY and W. S. THORINGTON, contra.-The assignees under the deed of trust sustained precisely the same relation to the property involved in this controversy they would have sustained if it had been part of the estate vested in them by the deed of assignment itself. The assignees, therefore, simply paid Moses Bros.' debt when they undertook to purchase the mortgage, and the recital in the written transfer of the mortgage that it was not intended to cancel or satisfy the debt, could not possibly change the legal effect of that payment. It operated as an extinguishment of the debt just as effectually as if Moses Bros. had made the payment. The assignees made the payment with Moses Bros.' assets and as their representatives, and the legal effect is the same as if it had been made by Moses Bros. themselves.-Sampson v. Jackson, 103 Ala. 550; Sampson v. Fox, 109 Ala. 662; Koonce v. Bass, 112 Ala. 685. HEAD, J.-The bill avers that on August 9th, 1888, said Emily T. Nathan and her husband, Lewis W. Nathan, executed to Lena Wolff a mortgage on the land described in the bill to secure the payment of a note for $4,000 then executed by said Emily to said Lena Wolff, with the necessary written consent of her husband. The note was payable two years after date, with interest payable semi-annually. The mortgage recited that the note was given for money borrowed by said Emily from the payee. That in July, 1891, said Emily executed a conveyance of said property to H. A. Sayre, S. M. Levin, and R. B. Snodgrass, assignees under a certain deed of trust executed by Moses Bros, for the benefit of [Cheney, Trustee, &c., v. Nathan.] their creditors; the said property to be held by said assignees under the trusts set forth in said deed of assignment, and the assignees were let into the possession of the property. On August 17th, 1891, said assignees as such, obtained an assignment of said note from said Lena Wolff, paying her therefor said sum of $4,000, and the accrued interest thereon. It was stated in the assignment of the note, endorsed thereon, that said assignees declared it to be their intention not to satisfy said note, or, in any way, by said transfer, to affect as security for payment of the same, the said mortgage executed to secure the note, as aforesaid. Afterwards said assignees were removed from said trust, and the complainant and one Janney became their successors, and thereupon said original assigness assigned said note to such successors by endorsement thereon. Janney afterwards died, and complainant, Cheney, has since been administering the trust, as surviving trustee. In 1895 (the date not given), said deed of conveyance executed by said Emily to said assignees was by decree of the chancery court declared void by reason of the failure of said Lewis W. Nathan to properly join in the execution of the same, and the complainant, under said decree, surrendered possession of said property to said Emily. While in the possession of said property, said original assignees and their successors, in administering their trust, paid large sums of money for State, county and city taxes and charges upon said property, and other sums for insurance and repairs, receiving a small amount of rent which was greatly insufficient to reimburse them for said sums so paid. The said mortgage provided, among other things, that in case it was foreclosed by judicial proceedings a reasonable attorney's fee for the same would be paid out of the proceeds of the sale. Indebtedness secured by said mortgage has never been paid. The original bill, which was filed by said Cheney, as surviving trustee of said Moses Bros. as aforesaid, against the said Emily T. Nathan, alleging the foregoing facts, prayed for an order of reference to ascertain the amount due complainant on account of said indebtedness and the said sums paid for taxes, repairs and insurance and a reasonable solicitor's fee for the foreclosure; that the mortgage be foreclosed and the said prop [Cheney, Trustee, &c., v. Nathan.] erty decreed to be sold for the payment of the sums found due, together with the costs and expenses of this suit, and for general relief. The respondent answered the bill admitting the execution of the note and mortgage, but setting up that no part of the money was borrowed for her use or benefit, that she received no part thereof but that the same, and the whole of it, was borrowed for, paid to, and used by, the said Moses Bros. of whose estate the complainant is trustee. She admitted the signing of the said deed of conveyance to said original trustees, as alleged in the bill, and that said assignees went into possession of the property, and she admits and avers, that said conveyance so executed by her, and purporting to be executed by her husband, was thereafter, on May 30th, 1895, in a certain cause in which the complainant was a party, declared null and void by the chancery court, and the property restored to her possession. She admits the payment of said mortgage debt and interest, and the transfer by said Lena Wolff to said assignees, as alleged in the bill, but she insists that said assignees, in making said payment and taking said transfer, simply paid the debt of said Moses Bros., and not her debt, and that the transfer did not and could not have the effect of keeping the note and mortgage alive as a debt against her, or as a lien upon her said property, but that the effect of said payment was to cancel and discharge the mortgage debt. She neither admits nor denies the allegations in reference to expenses paid, attorney's fees, etc. The answer sets up, circumstantially, the facts touching the borrowing of the money from Mrs. Wolff, and the execution of said note and mortgage by the respondent on her property, to secure the loan, and shows that respondent had nothing to do with the negotiation for the loan, had no personal interest in it, but that the whole transaction was one of Moses Bros. to obtain the loan for their own use and benefit; that it was obtained by them, the money received by them and used by them, and that respondent executed her said note and mortgage for the said loan, entirely as a surety for said Moses Bros., and that the debt was wholly the debt of Moses Bros. The respondent avers, on information and belief, that the said Moses Bros., with their own money, paid interest on said mortgage debt up to the time of [Cheney, Trustee, &c., v. Nathan.] their assignment, and that she has never, at any time, paid any interest thereon, or, in any other manner, recognized said debt as her own, as between her and the said Moses Bros., or their said assignees, and she avers that said note and mortgage are without consideration as between her and said Moses Bros. and their assignees. These facts the respondent sets up by way of plea, as well as answer. The answer then proceeds to set up the said judicial proceedings wherein the said conveyance by the respondent to the said original assignees was set aside and respondent restored to the possession of the property, pleading, by virtue thereof, res judicata; but, as the case comes before us, it is unnecessary to notice this defense. The answer is prayed to be taken as a cross-bill, to be heard at the same time with the original bill. It prays that the complainant be required to deliver up the said note and mortgage to be cancelled, and that he be perpetually enjoined from asserting any further claim to said property. A reference is prayed, to ascertain what amounts, if any, the complainant, or his predecessors, have paid out for taxes, insurance and repairs, and what rents, if any, they have received, and respondent offers to pay to complainant the excess, if any, of taxes, insurance and repairs over the amount of rents received. She prays also for general relief. On October 5, 1896, after the coming in of said answer, the complainant amended his bill, alleging that said assignment of Moses Bros. conveyed and transferred to said assignee all of the property of every character and description owned by said Moses Bros., either as partners or as individuals, for the benefit of their creditors, respectively, to be held by said assignees under the trusts therein declared, and to be sold and distributed among the several creditors of the firm and the individuals, respectively, according to their respective liens and priorities, as created and declared by law, and said assignees entered into possession of all of said property so assigned; that said conveyance of respondent to said original assignees had upon the same a certificate of acknowledgement wherein it was certified by a notary public of the county of Montgomery, State of Alabama, where the deed was signed, that respondent and her |