Jones v. Smith & Co.

92 Ala. 455 | Ala. | 1890

WALKER, J.

1. Conveyances, such as are attacked by the bill in this case, when made with intent to hinder, delay or defraud creditors, purchasers, or other persons of their lawful suits, &c., are by the statute declared to be void — Code of 1886, § 1735; and a creditor without a lien may file his bill in chancery to subject to the payment of his debt property which has been fraudulently conveyed. — Id. § 3544. The latter statute is intended to enlarge the former remedies in equity, 'and it should be liberally construed..—Todd v. Heal, 49 Ala. 275. We think that the evident purpose of this statute is to provide a new remedy in favor of the class of persons who, by the terms of the statute first above cited, are to be protected against fraudulent conveyances; that the word creditor-in section 3544 is not so confined in its meaning as to render the benefits of the statute available only to the person who-originally extended the credit, or with whom the debtor contracted his obligation; but extends to one to whom the indebtedness is due at the time the statutory remedy may be invoked that the right to file the bill is not personal to the original creditor, but may be enforced by his successors or assigns. Warren v. Williams, 52 Maine, 349; Cook v. Ligon, 54 Miss. 655; Wait on Fraud. Convey., § 92. The narrow construction contended for would necessarily tend to limit and restrict the assignability of debts. That such was not the purpose of the legislature may well be inferred from the fact that it is the policy of our law, as evidenced by statutes and the course of decisions, to facilitate the transfer of obligations with all the rights and remedies that were incident thereto in favor of the original obligee. The right of an assignee to file a bill to set aside a fraudulent conveyance has been recognized without question.—Ruse v. Bromberg, 88 Ala. 619.

2. The bill alleges that the debt was due to the firm of Daniel & Smith, a partnership composed of Joseph Daniel and complainant; that the judgment was rendered in favor of the-partnership; that the partnership has been dissolved; that said Daniel has transferred all his right, title and interest in and to the said claim to complainant, and that said judgment is now the property of complainant. To entitle the complainant to proceed in equity it was not necessary for the bill to-aver that the assignment was made in writing. A parol assignment was sufficient to entitle the complainant to file his bill in his own name.—Moorer v. Moorer, 87 Ala. 545; Brahan. v. Ragland, 3 Stewart, 247; Steele v. Thompson, 62 Ala. 323; O'Connor v. McHugh, 89 Ala. 531; 6 Amer. & Eng. Encyc. of Law, 656-657.

3. As the bill alleges that the judgment is the property of the complainant and the only interest therein besides his own lias been transferred to him, it was not necessary to make the partnership of Daniel & Smith, or Joseph Daniel, parties to the suit. The bill showed that they were without interest in the claim. If the transfer or ownership of the judgment is doubted or denied, this question may be raised by piea, or in the answer.—6 Amer. & Eng. Encyc. of Law, 752; 3 Brick. Dig. 368; Broughton v. Mitchell, 64 Ala. 210.

4. The bill being maintainable under section 3544 of the-Code, it was unnecessary to allege that there had been an Issue and return of execution on the subject.—Lehman v. Meyer, 67 Ala. 396; Mathews v. Ins. Co., 75 Ala. 85.

Affirmed.