55 So. 917 | Ala. | 1911
The appeal in this case is taken from the decree of the chancellor holding certain pleas, filed to the bill insufficient; the cause having been set down for hearing on the sufficiency of said pleas.
Waiving the question as to the character of the pleas, whether or not pleas puis darein continuance and requiring verification at the time of their filing, or at the time the cause was set down for hearing on their sufficiency, “The oath is not a part of the plea, but a preliminary to its reception, and when the plea is thus received it cannot he rejected by the court because it is insufficient.” — McCall v. McRae, 10 Ala. 313-316. In Wright v. Evans, 53 Ala. 103-107, it was ruled: “If verification is necessary, the want of it is not cause of demurrer, but ground of objection to the filing of the plea, -or, if filed, on motion to strike it from the files.” “The setting down of a plea to a bill for hearing on its sufficiency is- an admission of the truth of all the facts alleged for the purpose of invoking judgment as to whether the facts constitute a defense.” — Town of New Decatur v. Scharfenburg, 147 Ala. 367, 41 South. 1025, 119 Am. St. Rep. 81; Tyson v. Land Co., 121 Ala. 414, 26 South. 507; Glasser v. Meyrovitz, 119 Ala. 152, 24
In chancery practice and pleading, a plea may,- the same as a demurrer, he filed to a paid of the bill, as well as to the whole bill. — Sims’ Chan. Prac. & Plead. (Ala.) § 57; Story’s Eq. Pl. (Redfield’s Ed.) §§ 647, 659; Dan. Chan. Prac. (4th Am. Ed.) vol. 1, p. 685.
The record in the present instance fails to show with any degree of certainty that particular pleas numbered 1 and 2 were set down for hearing on their sufficiency. All that is shown in this respect is found in the decree of the chancellor, wherein it is stated that the cause “was submitted for decree upon the sufficiency of the pleas filed by Emma D. Cartwright and Anna Cartwright.” Pleas numbered 1 and 2 were filed to the substituted bill as amended July 2, 1908, but were not refilled to the substituted bill as last amended on September 12, 1908. To the substituted bill as last amended, pleas 3 and 4 were filed, and then it was that the cause was set down for hearing on the sufficiency “of the pleas.” From this it does not affirmatively appear that the cause was set down for hearing on pleas 1 and 2 to the bill as last amended, and on appeal error must be affirmatively shown. The court cannot be put in error for ruling on pleas, when the record does not clearly show that action was had by the court on them. A submission and hearing on pleas 3 and 4 filed to the bill as last amended fully respond to the above-quoted recital contained in the decree.
This brings us to a consideration of pleas 3 and 4, and the ruling had thereon. Plea 3 sets up as a defense that certain persons, alleged in the bill to be creditors of the bankrupt, and whose names are set forth in the plea,
We digress here to state the purpose of the bill. The bill is exhibited by the appellee, Marvin West, as the trustee in bankruptcy of the estate of Herbert Cartwright, who had theretofore been adjudicated a bankrupt, and has for its object the annulment and setting aside of certain conveyances alleged to have been made by the said Herbert Cartwright to the appellants, respondents in the bill, with the intent to hinder, delay, or defraud his (the said Cartwright’s) creditors. The complainant in his bill undertakes to set out the names of the various creditors of the bankrupt, and the amounts of their respective claims. The prayer of the bill in the alternative, among other things, is for personal decrees against the alleged fraudulent grantees for the value of the property so fraudulently conveyed.
The trustee in bankruptcy in a sense is a representative of both the bankrupt and the creditors. As such he succeeds in right and title to the bankrupt’s estate for the benefit of his creditors. He may, as a general rule, maintain all actions, both at law and in equity, for the recovery and preservation of the assets, both real and personal, of the bankrupt’s estate that the
The bill before us is in the nature of a creditor’s bill to set aside fraudulent conveyances made by the debtor, and the trustee in filing it in reality represents the interests of the creditors alone. The object of a recovery is for distribution among the creditors of the bankrupt. If in such a case the bill was exhibited by the creditors themselves, all of whose claims were barred by the statute, and this defense should be set up by plea, it is evident there could be no recovery1. Why, it may be asked, should hot the same principle be applicable here? If the creditors are barred by the statute of the right of participation in a distribution of the bankrupt’s estate by reason of a failure to file their claims within the 12 months prescribed by the bankrupt statute, and a recovery should be had in a bill like the present one, to whose benefit would the recovery inure? There would be no one else to receive the benefits but the bankrupt himself, and by such a proceeding he would become the beneficiary of his own fraud.
• Recurring to pleas 3 and 4 which the chancellor held to be insufficient for reasons stated in his decree. These pleas are what are termed in chancery practice as pure pleas. They are each directed to parts of the bill only, and profess to answer such parts by setting up as a defense a statutory bar to any right of recovery under the bill. The theorv of the chancellor in overruling the
At common law the statute of limitations as a bar to an action may be waived, and is considered as waived,
The decree of the chancellor is reversed, and one is here rendered sustaining the pleas.
Reversed and renderd.