Jones v. Massey

79 Ala. 370 | Ala. | 1885

CLOPTON, J.

The bill is filed under» section 3886 of the Code, which authorizes a creditor without a lien to file a bill in chancery, to subject to the payment of his debt any property which lias been fraudulently transferred, or attempted to be fraudulently conveyed, by his debtor. The purpose and operation of the statute are to dispense with the necessity of obtaining a judgment at law, thereby establishing the justness of the demand, and to confer on a creditor without a lien the rights of a judgment creditor, so far as a judgment was essential to the jurisdiction of the court. The statute 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 has 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. The bill having been filed before the maturity of the debt, it was prematurely brought. The remedy, in such case, if the creditor deems a lien essential, is an attachment at law, where he is required to make affidavit and give bond to indemnify the debtor, if the attachment is wrongfully or vexatiously sued out.

The bill is also defective, in failing to allege the facts, from which the fraud is supposed to arise. A general averment of fraud, which is a conclusion of law from facts, without stating the facts, is not sufficient. The bill does not allege or exhibit any conveyance made, or attempted to be made; but only makes the general averment, that the debtor was fraudulently transferred, or attempted to fraudulently transfer his property, with the purpose and intent to defraud complainant and his other creditors. A decree can not be made on such averment. Flewellen v. Crane, 58 Ala. 627.

Affirmed.