Clements v. Eggleston

114 So. 2 | Ala. | 1927

The trustee did not have to obtain the consent of the bankrupt court to file the present bill in the state court. Cartright v. West, 155 Ala. 619, 47 So. 93. The statute and authorities referred to by counsel for the appellant relate to suits begun by the bankrupt and the right of the trustee to prosecute them to a finish, and not to suits originally commenced by the trustee as in the present instance.

Of course, fraud cannot be properly charged by way of conclusion merely, but we think the present bill sets up sufficient facts to meet the requirements of the rule. Moody v. Moody (Ala. Sup.) 112 So. 752.¹ Whether the bill had to charge that the land conveyed did not constitute a part of the homestead, or whether or not the fact that it did was defensive matter, matters not, as the bill expressly avers that the land in question was no part of the homestead.

The bill charges that the conveyance was fraudulent, and this was sufficient as against creditors then existing or existing at the time of the bankruptcy, and the adjudication of bankruptcy relieved the complainant from averring and proving that the claims had been proved and allowed. Booth v. Bates,215 Ala. 632, 112 So. 209.

The decree of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.

¹ Ante, p. 156.