69 Ala. 40 | Ala. | 1881
The present bill, filed by the appellees, creditors of the appellant, Parker, seeks to compel the appellant, Chamberlain, to discover and account for goods, merchandise and choses in action, it is averred, were sold and transferred to him by Parker, with the intent to delay, hinder and defraud his creditors. A mere general charge of fraud — a mere general averment that the sale and transfer were made with covinous intent is not sufficient. Fraud is a conclusion of law from facts stated and proved; and when it is pleaded at law or in equity, the facts from which it is supposed to arise must be clearly stated, that the court may determine whether they constitute fraud. — Flewellen v. Crane, 58 Ala. 627; Clay v. Dennis, 3 Ala. 375.
There are several facts and circumstances stated in this bill, to support the general charge of fraud. The first is, that the debt in payment of which the sale and transfer were made, exceeded in amount twice the value of the goods and choses in action. The validity of the debt is not controverted. There is no averment that it was not fair and just in all respects. On
"Whether Chamberlain as trustee had authority to compound the debt by taking the property at an excessive value, and whether the cestuis que trust have the right to repudiate the transaction, can not be important inquiries in this controversy.
There is no fact averred from which the want of authority can be inferred. All trustees having authority to loan, or to invest trust funds, have a corresponding authority to collect them, and in the collection may exercise the same powers of compounding and discharging they could exercise', if they were clothed with the beneficial interest as well as the legal title. Waring v. Lewis, 53 Ala. 615; Foscue v. Lyon, 55 Ala. 440; Baldwin v. Hatchett, 56 Ala. 461. If the dealing between him and the debtor, within the line of his authority, is free from all intent and purpose, common to both, to defraud the cestuis que trust, in consequence of his injudiciousness it can not be disturbed.— Waring v. Lewis, supra. Or, if it were shown the original loan of trust funds to Parker was a devastmit, the right of Chamberlain to retain them would not be affected, and rightfully he could compound or discharge the debt, thereby indemnifying himself on such terms as he deemed proper, in view of the failing condition of the debtor. — Tomkies v. Reynolds, 17 Ala. 109.
But of what interest it can be to other creditors of Parker, whether the cestuis que tnost could repudiate the transaction, it is difficult to perceive. At most, the transaction is voidable only, hot void. — Charles v. Dubose, 29 Ala. 367. Until the cestuis que trust manifest an election to avoid it, for all purposes it is'valid according to the intention of the parties. The right of election is personal to the cestuis que trust, and can not be exercised for them by the appellees for the purpose of appropriating to themselves all the property of the debtor to the exclusion of the debt in which the cestuis que t/rust have the beneficial interest.
The facts attending the transaction — the fact that Chamberlain made but a casual examination of the goods and dioses in action; that no inventory of them was taken until after the sale and the change of possession, or that receipts or releases were not given Parker, must all yield as circumstances of suspicion, in the presence of the admitted fact, that for a full price there was an absolute, unconditional sale of the property in payment of a just debt. They indicate only the anxiety, and, it may be impatience, of a diligent, vigilant creditor to obtain all
The facts specially stated in support of the general averment of fraud, do not, in contemplation of law, constitute fraud, and do not support the averment. The demurrer ought to have-been sustained; and a decree will be here rendered, reversing the decree of the chancellor, sustaining the demurrer and remanding the cause, that the bill may be dismissed, unless by proper amendment a case of equitable cognizance is presented.