40 So. 387 | Ala. | 1906
This was a bill filed by a creditor, under section 2158 of the Code of Alabama of 1896, to have declared a general assignment a conveyance made by the ■debtor to one creditor of substantially all of his property to pay a debt due to said creditor. The appeal is from the decree overruling the demurrer of appellant to the bill of appellee, and the insistence of appellant is that, as the deed is not invalidated by the statute, but under it the grantee merely became a trustee for all the creditors, therefore the bill is without equity, unless there is in it an allegation that a demand has been made upon said trustee to execute said trust, and a refusal to do so.
The cases upon the subject of express trusts are not applicable. The defendant does not hold under an express trust declaring the interests of the creditor, but, on the contrary, holds under a deed which purports to convey to him the entire estate in payment of his debt, to the exclusion of other creditors. He is holding in opposition to their equities, and it is only by the operation of the statute that the creditors have an equity to have that deed declared to be (what it does not purport to be) an assignment for their benefit. In order to have declared the true nature and effect of the instrument, and to secure their rights, whenever the attempt has been
This is the only error insisted on. The decree of the court is affirmed.