72 So. 617 | Ala. | 1916
Whatever the damages recovered under the homicide statute may be called, they go into the estate for distribution as provided by the statute; our, and similar statutes, have uniformly been held to include all actions or claims, though they sound in damages merely.
Our statutes once limited bills of this kind to judgment creditors, but they have long since been amended so as to include also simple creditors. See Gunn v. Hardy, 130 Ala. 642, 31 South. 443, and Calvert v. Calvert, 180 Ala. 105, 60 South. 261, both of which cases hold in effect that a bill like this can be maintained.
Our present statutes as to fraudulent conveyances are different from the statutes of most all of the other states, and also different from our ancient statutes on the subject. That is, they give simple existing creditors or persons having present existing claims, demands, suits, etc., the same rights as if their debts, claims, demands, or suits had theretofore been reduced to judgment. The persons or classes mentioned in our statute, who can file a bill like the one in question, are described as follows: “Creditors, purchasers, or other persons of their lawful suits, damages, forfeitures, debts, or demands.” — Code 1907, § 4293.
The complainant here, we hold, comes within both the letter and the spirit of the statute. The statute in terms includes all
There is a dictum, if not a holding, to the contrary, however, in the case of Dowling v. Garner, 195 Ala. 493, 70 South. 150. But the decision could have been rested solely on the ground which is well stated in the first part of the opinion; that is, that the chancery court has neither original nor statutory jurisdiction of a suit to recover damages for wrongful death, as provided under our homicide statute, for the reason that the statute confers the right, requires a jury to assess the damages, and places the amount of the recovery within the discretion of the jury. The prime purpose of the bill in Dowling’s Case was to recover damages by a suit in equity; the attempt to set aside the conveyance was purely incidental. The bill in that case, therefore, could not be given equity, by its merely seeking to set aside a conveyance as fraudulent against a suit or claim which could not be reduced to judgment or decree.
So much of the opinion in that case as decided that an administrator cannot file a bill to set aside a conveyance as fraudulent, until he has reduced his claim to judgment, was dictum and was unsound. If the claim or demand is not within the protection of the statute when the conveyance is made, it cannot thus be made retroactive. The rights of the donee or grantee cannot thus be affected or controlled by subsequent acts of the donor, grantor, or his creditors, or those claiming under them. The status and rights of the parties are fixed by law at the time the conveyance or gift is consummated, and if valid or void then, as to any of such parties, it cannot be thereafter changed at the will or wish of only one party to the matter or rights in question. The creditor may waive the rights he acquired, but he cannot, by his own acts thereafter, create a right which he did not have when the conveyance was made.
Our statutes, as we have shown, make the right to file the bill concurrent, in point of time, with the making of the fraudulent conveyance. In other words, our present statute does not require the debt, claim, or demand, which is protected by the statute, to be reduced to judgment before the bill is filed. The action
It follows that there was no error in overruling the demurrers to complainant's bill.
The majority concur in the conclusion, and think that this bill falls within the rule laid down in the Dowling Case, supra, and that it is unnecessary to explain or qualify said case in order to decide this one.
Affirmed.