Cato v. Easley

2 Stew. 214 | Ala. | 1829

By JUDGE COLLIER.

So many of the points presented by the assignment of errors as it is deemed material to notice, may be thus succinctly stated.

1. Could the administrator of Wyche Cato have been properly made a defendant to the bill of the appellee?

2. Should the wards of the appellant have defended by a guardian ad litem?

3. Is the deed of gift made by the mother, who was largely indebted at the time, as against existing creditors, void per se?

4. Was it necessary to have expressed in the decree, a time when the infants, on attaining full age, should be permitted, to impeach it. ?

5. Is not the decree rendered for too large a sum?

The first point makes it necessary briefly to stale the facts. Wyche Cato, the father of the wards of the apjiellant died intestate, possessed of a considerable real and personal estate, on which the appellant administered. A part of the estate was sold by the administrator, and purchased by Martha Cato, the mother of the wards, and widow of the intestate, who made her note therefor with the appellee as security, payable six months after date. After the making of the note, she conveyed her property, without any valuable consideration, to her children, and the appellee has been compelled to pay it with interest and costs. To reimburse himself this suit was brought, to subject the property thus voluntarily conveyed, to the payment of this demand.

Perhaps it was unnecessaiy to have made the administrator a party to the bill, unless a discovery was sought from him for some purpose. It does not appear whether the obligations of the appellee, which- it was essential tó prove in order to a decree in his favor, could have been proved without the benefit of his answer. The bill merely shews, that by written testimony the appellee could have shewn the amount paid by him, but not that he could prove that he was the security of the mother. And for any thing appearing to the contrary, the administrator may have been a party, that a knowledge of that indispensable fact might have been acquired by his answer. Be this however as it may, the decree oi the Court below cannot be aifected by it, as there is no decree against the administrator as such, and in that character he has no right to complain of it.

The record does not make it necessary for the Court to decide in this case the abstract question, whether infants should defend by a guardian ad litem where they have a general guardian. The names of all the infants are set oftt in the bill; their names and the name of the appellant as their guardian, are recited in an order made by the Court upon the bill, and before the coming in of the answer; they all profess to answer by their guardian in usual form. From these facts appearing on the record, the Court might infer that the appellant was either appointed as their guardian to defend this particular suit, or if not appointed, that he was recognized as such, which may be considered as tantamount to a special appointment. In Virginia it has been holden, where a suit against infants in Chancery was defended by a guardian appointed by the County Court, and the answer of the guardian was received for them, and full defence made under the sanction and authority of the Court, that the infants wex-e equally bound by such- defence, as if their guardian had been appointed in foi-m ad litem, by the Chancery Court. ^a Tins decision we have no hesitation ixx recognizing as law. Again, if the appellant had no authority to defend for the infants, the objection, we are inclined to think, should be taken by them on attaining full age, and not by the appellant now, because he would have no right to bring their case into this Court, for want of the authority of which he complains.

It. is a wrell established rale of the common law, that all conveyances made with an ixrtent to delay, hinder and defraud creditors, are fraudulent and void, axxd. our statute of frauds and perjuries is declaratory of it.^b And it is a legal inference, that avoluntax-y settlement or conveyance. made by one indebted at the time, is, as against such creditors, fraudulent, and absolutely void. It appears that the debt which was paid by the appellee, and for which he seeks an indemnity, was existing at the time of the conveyance, though not in his hands. The effect of the payment by the appellee as security for the mother, was not an extinguishment of the equitable lien which the administrator had on the property conveyed; at law the debt was extinguished; in equity it is continuing; and the appellee is considered as standing in the same situation in regard to the property conveyed, as the administrator did; and every facility which he had in equity for the collection of the debt, was transferred by the payment, to the appellee. The doctrine in relation to" voluntary conveyances is very fully considered in the case of Reade v. Livingston and others;^a The learned Chancellor collects and reviews the most prominent of the English adjudications upon the subject, and maintains, that a conveyance without valuable consideration, by one indebted at the time, is fraudulent in law against existing creditors, and that the intention of the donor determines the validity of such conveyance, as against subsequent creditors, which intention must be ascertained by the circumstances accompanying and following the conveyance. In Wheaton’s Reports and' Johnson’s Chancery Reports, the same doctrine is recognized. ^b

With regard to the objection that no dime is expressed in the decree when the infants shall impeach it on attaining full age, it is enough to say, that the statute prescribes the time; and that therefore it need not be repeated in the decree.^c

The decree is for a larger sum than appears to have been due the appellee. For that cause it must he reversed, and rendered here for the sum which seems to have been due, including interest, and the costs of the suit of Wyche Cato’s administrator against the appellee; ^* to be collected by a sale of the property described in the decree, if it be not sooner paid; and the appellee must pay the costs of this Court.

Decree reversed and cause remanded.

a Beverleys v. Miller, 6 Munf. 99.

b Laws of Ala. §44.

a 3 John. Ch. Rep. 481.

b 11 Wheaton 199.8 Wheat. 242. 4 John. Ch. Rep. 450.

c Laws of Ala. 492.

* The decree was rendered for $971 01.