Garner & Neville v. Lyles & Bracy

35 Miss. 176 | Miss. | 1858

Exshee, J.,

delivered the opinion of the court.

This was a creditor’s bill, filed by the appellants in the Vice-Chancery Court at Macon, to subject certain property and equitable assets to the payment of two judgments recovered by the appellants against John T. Lyles and William ft. Bracy, and to the payment of a judgment recovered against the same parties and William D. Lyles, under the name of Lyles, Bracy & Co.

The bill contains the usual allegations in such bills, of the issuing of executions on the several judgments, and the return of nulla bona, &c. It then proceeds to aver the death of Bracy; that no administration has been granted upon his estate ; that the complainants, being non-residents of the State, cannot obtain letters of administration; and that they have been unable to procure any other person so to do. That Bracy left a large estate, consisting of furniture, slaves, &c., all which has passed into the hands of his widow, and her father, Yates ; that these parties set up a claim to said property, but that such claim is fraudulent as to the complainants. The bill also alleges that the defendants, John T. Lyles and William D. Lyles, have divers choses in action, consisting of notes, accounts, &c., which cannot be described by the complainants, as they are ignorant of the names of the several persons against whom said claims exist, and prays a discovery as to these matters, as well as to the estate of said parties.

Mrs. Bracy and Yates appeared and filed a demurrer to the bill, which demurrer was sustained by the vice-chancellor, and the bill dismissed. From which decree this writ of error has been prosecuted.

. As to John T. arid William D. Lyles, no appearance appears to have been entered, and their r-ights will therefore not be noticed.

The bill, as to the property of Bracy, is full and definite. The claim of Mrs. Bracy and of her father is minutely set forth, and is alleged to be fraudulent. It is true, that no administration has been granted upon Bracy’s estate; but these parties are charged to have intermeddled with the estate, and are therefore executors in their own wrong, and could be sued as such in a proper case at law. Bracy was a party to all the judgments; and was, of course, though sued as a partner, individually liable for all. Under these circumstances, it is difficult to perceive why the bill, as to the property alleged to be fraudulently claimed by Mrs. Bracy and Yates, cannot be sustained.

It may be true, that the bill is vague and indefinite as to the property in the hands of John T. and William D. Lyles; but this is no reason why it should not be sustained as to another debtor, or parties claiming his estate, when no such objection can be urged to the bill.

Bracy was legally bound to pay all the judgments; and the bill alleges that the property, which ought to be applied to their payment, has, by fraudulent means, gone into the possession of the above-named defendants, who set up a fraudulent claim to said property, which is minutely described. The very statement of the facts appears to be sufficient to settle the question as to the jurisdiction of a court of equity. It is no answer to say, that William D. Lyles is a party to one of the judgments, and not a party to the other two, when the main object of the bill is to subject the property of Bracy, who was a party to all the judgments, and when he was as much bound for their payment as if he were the only party thereto.

We are therefore of opinion, that the court belowT erred in sustaining the demurrer to the bill.

Decree reversed, demurrer overruled, and cause remanded.