92 Ala. 469 | Ala. | 1890
The present bill is filed under section 3544 of the Code, and seeks to subject to complainants’demands certain lands alleged to have been fraudulently conr veyed by the debtor, William Freider, to Louisa Sander. The-
We infer from the argument of counsel that the chancellor ■held the allegations of the bill, that on February 2,1890, complainants “offered to discount their said second note of $600 •on the most liberal terms, which the said Freider accepted,” to be insufficient, to show that the date of maturity of that note had been changed to the time of said proposition; and we quite.agree with him. This averment is entirely too vague to show any contract fixing another time for the payment of the note. The statement involves nothing looking to such purpose, and nothing definite upon which the minds of the parties could have met for any purpose.- — Adams v. Adams, 26 Ala. 272. Moreover, the acceptance of a proposition to •discount a note involves its payment. This note was not paid. Hence it is that the averments on this point may be said to be self-contradictory.
It appears, therefore, that the bill seeks a decree and order ■of sale, not only for the $170, which was due, but also for the $600 note, which was not due when the bill was filed, and is not yet due. It is the settled construction of the statute under which the bill proceeds, that “it does not exempt such suit from the general rule, which prevails in equity, as well as at. law, that no suit can be maintained before a cause of action lias accrued, and does not confer on a creditor the right to bring a bill to subject property to the payment of his debt before, its maturity, and before he is authorized to maintain an action at law on the demand.” — Jones v. Massey, 79 Ala. 370; Bragg v. Patterson, 85 Ala. 233.
The demurrer presents the question whether a complainant may proceed under this section for a debt which is not due)
The decree in this regard can find no support in the supposed legal fact, that- the tiling of the bill created a lien on the property, and the assumption that the court, having jurisdiction to enforce the lien as to the past due note, has the power to preserve the property and keep the lien in tact for the satisfaction of the note to become due, by analogy to foreclosure and the like, where a part of the debt is due and a part not. The fundamental infirnrity of this position is, that while the tiling of a bill of this sort creates a lien on the fraudulently conveyed property for the satisfaction of the debitor which a right thus, to proceed existed, no lien arises as to a debt as to which the complainant was without right to file this bill. No lien existed as to the $600 note; and the sole predicate for the relief claimed in argument on this theory is wholly lacking. In no aspect can the court’s jurisdiction to enforce payment of the note yet to mature be maintained. The third ground of the additional demurrer filed August 20, 1890, is addressed to this point. It-should have been sustained, and the complainant put to an amendment- eliminating all claims to relief based on the note for $600 due February 2, 1891.
The allegations of the bill sufficiently set forth the facts constituting the fraud complained of. — Stix & Co. v. Keith, 85 Ala. 465; Miller v. Lehman, Durr & Co., 87 Ala. 517.
For the error committed in overruling the demurrer presenting the question of complainants’ right to proceed on the note not due when the bill was filed, the decree of the chancellor must be reversed. The cause is remanded.