Freeman v. Pullen, 119 Ala. 235

119 Ala. 235 | Ala. | 1898

COLEMAN, J.

The averments of the bill show with sufficient definiteness that complainant sues in his character as surviving partner; that the lands sought to be condemned are situated in Limestone county, the county in which the bill is filed, and that the debt was due by account for goods and merchandise sold by the partnership, of which complainant is the surviving partner, “to the. Freeman Lumber Company, in which H. S. Freeman was the active and principal partner.” The bill avers that after said debt accrued, I-I. S. Freeman paid for certain lands, and had the title taken in the name of his wife, B. E. Freeman, for the purpose of hindering, delaying and defrauding the creditors “of said H. S. Freeman, he and said Freeman Lumber Company being heavily indebted and insolvent.” The bill shows that H. S. Freeman died subsequent to the transaction stated above. Tbe purpose of the bill was to reach and subject to the payment of the debt, the lands averred to have been fraudulently purchased in the name of the wife, and as originally filed, the administrator of H. S. Freeman and his wife, R. E. Freeman, were made parties respondent. It was subsequently amended,, by making one Hilliard Johnson a party respondent. As to said Hilliard Johnson, the bill avers that “he claims some interest in the tract of land described in the bill, the precise nature and character of which is to the complainant unknown,” and that such interest or claim was unknown to complainant at the time of the filing of the bill.

A creditor of a partnership is a creditor of the several members composing the firm, and may sue either, or the legal representative of either, for the obligation of all. — Code, 1896, section 40, authorities. It does not appear from the averments of the bill that the Freeman Lumber Co., or the members composing the firm, other than I-I. S. Freeman, have any interest in the lands paid for by H. S. Freeman and fraudulently conveyed to his wife by the vendor, or that it or they can be injuriously affected by any result of the litigation; nor can we conceive of any possible interest the heirs of H. S. Freeman can have in the lands, nor why they should be made parties respondent-.

Section 331 of the Code of 1896, which prohibits the commencement of suits against executors and administrators, as such, until six months after the grant of letters, does not apply to suits instituted by creditors to reach and subject property fraudulently conveyed by the decedent in his lifetime. ■ Such conveyances are valid against the grantor, and the property in no sense can become assets of the estate. — Ala. State Bank v. Glass, 82 Ala. 278; Torrey v. Bishop, 104 Ala. 551.

The commencement of a suit and its continuous prosecution operates as a presentation of a claim. — Floyd v. Clayton, 67 Ala. 265.

Section 818 of the Code of 1896 reads as follows: “A creditor without a lien may file a bill in chancery to discover or to subject to the payment of his debt any property which has been fraudulently transferred or conveyed, or attempted to be fraudulently transferred or conveyed, by his debtor.” Whatever may have been our former decisions, we regard the law as settled, that this statute authorizes a simple contract creditor, without a lien, to file a bill to discover or subject to the payment of his debt, any property which has been fraudulently conveyed by his debtor, without first exhausting his legal remedies to a return of nulla bona, whether the debtor be living or dead. — Davis v. Swanson, 54 Ala. 277; Coffey v. Norwood, 81 Ala. 517; Handley v. Heflin, 84 Ala. 600; McClarin v. Anderson, 109 Ala. 571; Lehman v. Meyer, 67 Ala. 396.

Hilliard Johnson did not object to the bill by demurrer. Those filed by the other respondents are without merit and were properly overruled.

A plea in abatement on the ground of misnomer must not only aver the true name, but must negative the fact that lie is or was knoivn and called by the name employed. — Wren v. State, 70 Ala. 1; Bright v. State, 76 Ala. 96. The proper practice in a court of equity would have been a motion to strike the jilea, and not by demurrer. The effect, hoAvever, was the same and furnishes no ground for a reversal.

Affirmed.