Sammis v. L'Engle et als.-Opinion of Court. draft at 90 days, payable in Boston to Reed & Hooper; that the balance due by them, Smallwood, Hodgkiss & Co., on account to Sanderson being $8,703.05, being "a guarantee for accepting;" that he thinks Sanderson may have obtained from Sammis two United States bonds to approximate and be about $10,000 including the balance of account as security; that his firm suspended about 30th of December, 1870, and that Sanderson had to meet the draft. He says also that if Sammis had an interest with Sanderson in any way he was not aware of the nature of it at all; that he supposed that Sanderson's order on his firm for which the firm gave their note to Sammis included the two United States bonds. This testimony establishes no relation between Sanderson and Sammis as to the Sammis debt except that Sammis being the payee of a draft by Sanderson upon Smallwood, Hodgkiss & Co. accepted their note (the foundation of his present claim) for it, thus as a matter of course releasing Sanderson of any liability which may have before that time existed, and which the draft represented. Sammis was simply a creditor of Smallwood, Hodgkiss & Co., and according to Smallwood's testimony had no claim upon any particular asset of Smallwood, Hodgkiss & Co. Samrais testified also as to Smallwood's statements to him in reference to his claim. This was excepted to as heresay, and the exception was sustained. Sammis now insists that Smallwood is a party to this suit and that in that aspect his declaration and acts are admissible as testimony. We deem it unnecessary to decide the question presented, as the testimony even if admissible should not have changed the result. The testimony excluded if shown by the record must be of such character as would properly change the decree, or the case will not be remanded. Material exclusion, not simple exclusion, is the error. Sammis v. L'Engle et als.-Opinion of Court. Sammis says that when he had the settlement with Smallwood, Hodgkiss & Co. in 1871, he (Smallwood) said that he had "a large amount of money due him and that he had ordered me to be paid out of the first moneys collected in Florida; that Sanderson & L'Engle were his (Smallwood's) attorneys, and that L'Engle had been so instructed by him." Sammis also says that L'Engle told him that he had been so instructed. He also says that upon writing to Smallwood, Hodgkiss & Co. subsequently in reference to the matter, Smallwood replied, "don't bother me with this matter, I have left it with my attorney L'Engle, who will see that you are paid, or words to that effect;" that he told L'Engle what Smallwood had said, and that L'Engle replied: "Yes, he was their authorized agent, and in a few days would have ample means in his hands to pay me and would see that I was paid." This testimony must be construed in connection with that of Smallwood. Thus construing it the result is simply that Smallwood anticipated that the sum to be realized from the assets of Smallwood, Hodgkiss & Co. would be at an early date sufficient to liquidate both debts and this he told Sammis. This general order, too, to pay money out of the first collections was given subsequent to the special assignment to Sanderson, which assignment was not subject to revocation by Smallwood at that time. Again, to the extent that there is irreconcilable conflict between Sammis and Smallwood, his own witness, credit should be given to the latter because he makes no claim to the fund, disclaims any interest except that it be appropriated according to law, and his statement of the entire transaction is more intelligible and consistent than that of Sammis. There remains to be considered but one ground of appeal which appears to have been the subject of judicial action in the Circuit Court, that is the order of the court dismiss Sammis v. L'Engle et als.-Opinion of Court. ing the cross-bill of defendant Sammis. The cross bill here is substantially the answer to the bill of interpleader and is inadmissible. No rule of practice authorizes such a proceeding upon a bill of interpleader. In this case the answers of the several defendants set up their respective claims to the fund and neither denied the right of complainant to a decree to interplead. The proper practice upon the answers and replication here was for the court to decree that the bill is properly filed, to dismiss the conplainant with his costs up to that time, and direct an action to be brought or an issue or a reference to ascertain and settle the rights of the defendants to the fund in controversy. Such a decree was made and a reference directed here. There was no error in dismissing the cross-bill and the proper practice was followed. City Bank vs. Bangs, 2 Paige, 570; Gibson vs. Goldthwaite, 7 Ala., 281. It is now objected here for the first time in this case that the case made by the bill is one not the proper subject of a bill of interpleader. We will not hear such an objection here for the first time where by the proceeding of the appellant he has clearly waived it in the Circuit Court. Unless the case presented is one where there is a plain and adequate remedy at law, or where the record discloses some jurisdictional defect, or there is extreme multifariousness, it is the practice of this court to affirm the action of the Circuit Court, if it is otherwise proper. In this case, however, we think the bill lies. This money is in L'Engle's hands, collected by him as the attorney of Smallwood, Hodgkiss & Co. They decline to take it, say they are insolvent, and leave him subject to be harassed by the suits of claimants claiming as creditors of his client. This bill of interpleader sets up the fact that he is not so fully advised of the facts as to act with safety, or to determine for or against the claim of the one or the other. This is not Sammis v. Matthews-Syllabus. the case of an attorney filing a bill seeking a decree of interpleader between his client and a stranger. He stands here in the same privity to each claimant. The attorney of Smallwood, Hodgkiss & Co. here stands in the same relation to two of their creditors, and this is a proper case for an interpleading suit. For the same reason we think the appellant cannot now be heard to object that L'Engle cannot as surviving partner sue himself as administrator. The objection is purely technical, and when urged here for the first time should be disregarded. The appellant has waived it by submitting to a hearing of his case upon the merits. Nor are we by any means certain that such an objection should prevail to the extent of dismissing the bill in a case so peculiar in its facts as this is. Decree affirmed. JOHN S. SAM MIS, APPELLANT, VS. WILLIAM MATTHEWS, APPELLEE. 1. A., the purchaser of a tract of land, pays one-half of the purchasemoney and gives a mortgage to secure the balance to B., the vendor. B., the original vendor and mortgagee of A., sells and assigns the mortgage unconditionally to C. C. takes it independent of any verbal conditions attending the original sale by A. to B., so far as they were for the benefit of B. 2. A sale of a security for less than its face value will not be set aside because made reluctantly and when one is greatly in want of money, the sale not being unusual or oppressive, there being no fraudulent advantage, imposition, or illegal restraint or duress. Appeal from the Circuit Court for Duval county. C. P. & J. C. Cooper for Appellant. R. B. Archibald for Appellee. Sammis v. Matthews-Opinion of Court. MR. JUSTICE WESTCOTT delivered the opinion of the court: This case arises upon demurrer sustained to appellant's amended bill, a previous demurrer having been sustained to the original bill. The foundation of the suit is a transaction occurring on the 11th of April, A. D. 1873, between the appellant and a corporation known as the "Florida Winter Home Association." On that day the appellant made a deed in fee simple absolute to the association named, containing one hundred and thirteen acres of land. In this deed there is no agreement or limitation as to its use, or the purpose to which the land was to be appropriated. Plaintiff alleges that it was agreed before the execution of the deed that the corporation should pay for the land $10,000 in cash, that as an inducement to sell the land the association. agreed and contracted to divide the land into lots to establish "a social community," with religious, social and educational advantages, to build school-houses and churches, and to keep up a ferry-boat to run from the land sold to the city of Jacksonville, for the convenience of the settlers on the land and of all persons residing in the neighborhood of the place; that he, with his family, should have "transportation free on said steamboat;" that he was the owner of property adjoining this land, and that the agreement to do all these things was an inducement and consideration for his contract and deed. Plaintiff then alleges that when the deed was executed the company did not pay in cash the $10,000; that instead thereof it paid $5,000 cash and gave a mortgage on the land for the remaining $5,000. He then states, and this seems to be the equity that he relies on, that at that time he was greatly in need of money; that this was known to the corporation, and that he was forced and compelled |