100 Ala. 582 | Ala. | 1892
The bill was filed under section 3545 of the Code, which authorizes a creditor without a lien or judgment to file a bill in a court of chancery for the discovery of the assets of the debtor, subject to the payment of debts. The constitutionality of the act, and the right of a creditor to relief under its provisions, has been thoroughly considered by this court and should be regarded as settled law in this State. If we understand the argument
A vendor’s lien is a claim of purely equitable cognizance, and it may exist and be enforced, although there is no written evidence of the indebtedness. Why is not the vendee entitled to a trial by jury to determine first whether he owes the debt ? Indebitatus vel non is a question purely of law. Equity alone has jurisdiction of the lien, but having jurisdiction for the purpose of the lien, it determines the law question of indebtedness, and decrees the debt, and then condemns not equitable assets, but land, which is subject.to execution from a court of law.
It is upon this principle that the constitutionality of the act rests. Why is not a debtor who “secretes,” “hides out” his assets which are liable for his debts, to prevent his creditor from reaching them, guilty of as much fraud, as one who puts them in the name of a third person for the same purpose, where they are discovered by the creditor ? The facts averred in the present bill, if. true, show not only fraud in the defendant, which would give the court of chancery jurisdiction, but the necessity of a discovery is also shown. We are content with the conclusion reached by this court, although there are courts of very high standing which hold the contrary.
We will cite the following decisions of our own court, and the authorities referred to in them.—Montgomery & Florida R. R. Co. v. McKenzie, 85 Ala. 546; Ib. 96 Ala. 465; Lawson v. Warren, 89 Ala, 585; Sweetzer v. Buchanan, 94 Ala. 574.
We are of opinion there is nothing in the statute which forbids the issue of an injunction before answer filed. To delay the order until the defendant saw proper to file an answer, would no doubt, in many cases defeat the purpose for which the bill was filed. We find no error in the record.
Affirmed.