49 So. 320 | Ala. | 1909
The bill in this case was confessedly filed under two sections of the Code of 1907, namely, sections 3739 and 4295.’ The one authorizes a creditor, without a lien or judgment, to file his bill to discover and to subject property fraudulently conveyed or transferred by the debtor, in the same manner as a creditor with a judgment or lien could do, without the statute. The other statute was intended merely to blot out or prevent intended preferences or privities between creditors by contracts of sale, and contracts of securities between the debtor and a part of his creditors, to the exclusion of the others.
To be within the statute, it must be a sale or security of practically all the debtor’s property which is subject to execution or to the claims of his creditors, and must be in payment or security of a pre-existing debt. A sale or security of a small part only of the property of the debtor, to one or more of his creditors, is not within the statute, nor is a sale or security of all of it for “a new' and present consideration” within the statute. It is
The statute is read into the contract, in law forming a part of it, though in fact it is, not. The court then declares it trust property and enforces the trust. Under the first statute the property is not declared trust property in the sense in which it is in the latter, but is declared to be that of the defendant and liable to his creditors, and in this particular case the simple contract
It therefore follows that the demurrer to the bill, upon this ground, should have been sustained. The question as to attorney’s fees cannot be passed upon until the complainant has determined under which statute he will proceed.
The decree is reversed, and the cause remanded.
Beversed and remanded.