48 Ala. 455 | Ala. | 1872
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The appellant filed his bill on the 11th of March, 1868, to subject to the payment of his judgment recovered against the appellee, Mrs. Dunklin, on the 21st of May, 1867, certain lands in her possession. He alleged, as a ground of chancery jurisdiction, that she and Sullivan, who claimed some interest in the property, mortgaged it, about the 7th day of May, 1867, to Smith and
The equity of redemption remaining in Mrs. Dunklin was subject to the execution of the complainant. — Revised Code, § 2871, par. 3. The mortgage was some embarrassment to him, as he had no legal way of ascertaining the precise amount still due upon it. The enlargement by statute of the jurisdiction of courts of law, without prohibitory or restrictive words, does not affect the original jurisdiction of courts of equity.— Waldron v. Simmons, 28 Ala. 629; Shep. Dig. 289, § 28. The extension of the execution to property or interests in property heretofore only accessible through equity is virtually an enlargement of the jurisdiction of the court from which it issues.
There are three prominent instances in which a creditor is entitled to the assistance of a court of chancery to obtain satisfaction of his debt. 1st. "When, with or without a lien, he seeks to set aside a conveyance made to hinder, delay or defraud creditors. — Revised Code, §§ 1865, 3446. 2d. When an execution has been issued, and is not satisfied, and he wishes to compel the discovery of any property belonging to the debtor, or held in trust for him.— Revised Code, § 3442. 3d. When he may redeem. — Rev. Code, § 2513.
The first is not applicable to this case, because there is
For aught that appears in the bill, the military orders may have been the only difficulty the complainant encountered in satisfying his execution. The remedy in chancery was certainly not intended to apply to a case in which the plaintiff refused to have his execution enforced. The effect of the decisions in Nix v. Winter, (35 Ala. 309,) a case under section 3442, Pharis v. Leachman, (20 Ala. 662,) and Brown & Dimmock v. Bates, (10 Ala. 432,) is that proof of visible property of the defendant in the county to which the execution issued, out of which it might have been satisfied, if the complainant had exercised due diligence to ascertain the fact, would defeat the action. The averments of the complainant’s bill must, under the general rule of pleading, necessarily be such as is inconsistent with this state of facts. As the statute requires the execution to be
The decree is affirmed.