64 So. 578 | Ala. | 1913
This opinion, be it understood, must be read in connection with the opinion which was rendered by this court in the case of W. D. McCurdy v. Sallie B. Kenan, 178 Ala. 344, 59 South. 489.
“Courts of equity, in affording relief against fraud, seek simply to restore the parties, as near as may he, to the positions they would have occupied had no fraud been perpetrated.” — Kennedy v. First Nat. Bank of Tuscaloosa, 107 Ala. 170, 18 South. 396, 36 L. R. A. 308.
In this case, if no fraud had been perpetrated, less than an undivided one-fourth interest in the land would have descended to Joseph R. Dudley upon the death of his father. The execution ran against Joseph R. Dudley, and his interest in the land was sold under that execution. Joseph R. Dudley, as grantee under the deed which Mary D. Witter had the power, at her election, to avoid, had an undivided one-fourth interest for life in said lands. Mary D. Witter took possession of that undivided one-fourth interest, and in so doing, we think, clearly indicated an election on her part not to avoid the sale.
Suppose, as an illustration, that a son became the surety for the father; suppose that the father then made a will, whereby he gave a life estate in a plantation to said son, with remainder in fee to the children of said son; suppose that the father then died, and léft ho property save the plantation so disposed of by will; suppose the creditor then obtained a judgment against the son upon the note of the father, and, under an execution, issued on that judgment, then sold said plantation as the property of the son. It seems plain that in such a case the purchaser would obtain only the life estate of the son. In that case, however, the creditor might well have treated the will as nonexistent in so far as his indebtedness was concerned, and by appropriate proceedings might well have had the property sold as the property of the estate of the father, and at such sale the purchaser would have obtained the title which resided in the father at the time of his death.
There is not, in reality, any difference between the case which we have above supposed and the case now. under consideration.
“No right without a remedy has long been the shibboleth of the common law, and it is needless to say that, if there Avere such a thing, it would be valueless.”— Sims’ Chancery Practice, appendix C, p. 525.
In the instant case, as between the administrator of John Dudley, Sr., and Joseph B. Dudley and the children of Joseph R. Dudley, the title to the lands, by virtue of the conveyance to which we have above referred, was in Joseph R. Dudley and his said children. The lands, therefore, were not subject to administration in the ordinary way. Mary D. Witter had no right, when her execution issued, to sell the lands as the property of John Dudley, Sr., because John Dudley was then dead, and the title to the land was out of him. She did have a right, however, by a bill filed for the purpose, with the fraudulent grantees as parties, to have, through a court of equity, the lands condemned to the payment of her debt. Equity was there, ready to furnish her with an ample remedy; but she did not see proper to invoke that remedy. On the contrary, she proceeded to have the lands sold as the property of Joseph R. Dudley, and she necessarily bought only the interest which Joseph R. Dudley had in the land. If John Dudley, Sr., had lived, and an execution had been issued against him, and returned “no property,” and then the lands had been sold under an alias execution issued against Joseph R. Dudley, we do not think that it would be seriously contended that Mary D. Witter had not elected
Nothing seems to be plainer than that a creditor, as to whose debt a conveyance is fraudulent and void, must by some affirmative act, disaffirm the conveyance. In other words, to claim rights against the conveyance, he must, by some affirmative act, as by a sale under execution of the property as the property of the fraudulent grantor, or by a bill in equity to cancel the conveyance because of the fraud, show that he elects to treat the conveyance as null and void.
In this case the lands were sold as the property of the alleged fraudulent grantees to satisfy a debt for which they, along with the fraudulent grantor, were liable. It seems clear, therefore, that the purchaser at the sale acquired that title which the grantees in that deed had acquired by virtue of the deed, and only that title.
Affirmed.