Prestridge v. Wallace, 46 So. 970

46 So. 970 | Ala. | 1907

McCLELLAN, J.

The motion to dismiss the appeal cannot be granted. — Rule 86, Chancery Practice; Beachman v. Aurora, Mfg. Co. 110 Ala. 555, 18 South. 314. The appeal was taken in the name of all respondents, summons and severance was granted, and errors are assigned by Prestridge alone.

Section 676 of the civil Code of- 1896 provides in whose district only an original bill may be filed; and a defendant, brought in by amendment, as Prestridge was, cannot, except for fraud, object to a conceived failure to observe tbe cited statute. — Gay v. Brierfield Co. 106 Ala. 615, 17 South. 618. The appellant’s demurrer and plea, attacking the jurisdiction of the court,- were therefore properly overruled.

The bill is filed by the trustee in bankruptcy of Randall to avoid, among others, conveyances from Randall to O. W. Cary and to L. J. Cary, and from the Carys to Prestridge, appellant, and from Prestridge to Johnson, on the specifically averred ground that these conveyances were made by all these parties with the intent to hinder, delay, and defraud Randall’s creditors. The bill in paragraph 4 describes the subject of these attacked conveyances, and alleges that Randall was seised and possessed thereof within four months prior to the filling of the petition in bankruptcy. Copies of the conveyances sought to be canceled are exhibited with the bill, original and as amended. The decree, on final submission, canceled the conveyance from Randall to the Carys, that from the Oarvs to Prestridge, and that from Prestridge to Johnson, and also adjudged the complainant, as against Prestridge and others, to be the owner of the lands thereinafter described as of the date of the filing of the petition in bankruptcy, to wit, April 10, 1001, and divested all the interest, right, title, or claim of Prestridge and others in and to those lands, describing only those lands mentioned in paragraph 4 of the bill as amended.

The answrnr of Prestridge and Johnson to the amended bill Avas, after stating the case, as follows: “The defendants, for answer, say that they deny as true all the paragraphs of said original and amended bill and every allegation therein contained, and call for strict proof thereof.” Oath to the answmr wras w-aived in the note to the bill. Rule 34, Chancery Practice. Oenerally speaking, an answer is insufficient that does not confess or traverse tlie material allegations of the bill, in so far-as they relate to the answering defendant. A literal denial is, of course, not the equivalent of the requisite-fullness and explicitness of the answer. — Gamble v. Aultman & Co., 125 Ala. 372, 28 South. 30; Savage v. Benham, 17 Ala. 119; Moog v. Barrow, 101 Ala. 209, 13 South. 665. And where material allegations set forth in the bill charge matters prima facie within the knowledge of the answering respondent, and the answer fails to deny them they will be taken as confessed. The denial here was of the most general character, and was entirely insufficient to meet the positive averments of the bill that this appellant, with others, was a party to the purpose to hinder, delay, or defraud the creditors of Randall, and to put the complainant to proof thereof. It is clear that, under the rule, the effect of the answer-was to confess the averments of fraudulent acts and purposes which, obviously, were prima facie within the knowledge of this appellant.- — Penney v. McCulloch, 134 Ala. 580, 33 South. 665; Gamble v. Aultman, 125 Ala. 372, 28 South. 30, and authorities there cited.

We do not understand that these long-recognffied. principles are controverted by counsel for appellant.. But his insistence is that, while the fraudulent acts and purposes of this appellant, alleged in the bill, may have been confessed by such an answer, yet it was notwithstanding this, incumbent on the complainant to-establish by proof the allegation that Randall was seised and possessed of the real estate described in paragraph 4 of the amended bill within the period prior to the filing of the petition in bankruptcy. We are of the opinion that the answer, as written, must be taken to have confessed that essential fact. The bill, with perfect explicitness, charged that the appellant, with others, entertained and acted on tbe purpose to binder, delay, or defraud Randall’s creditors by a disposition of tbe lands described in paragraph 4. This fraudulent intent could not have obtained, except upon tbe idea that tbe subject of tbe nefarious purpose and acts was tbe property of Randall, tbe debtor. Tbe admission of tbe existence of tbe intent and tbe confession of acts in accord with it leave no room for doubt that Randall’s substance was tbe basis of tbe condemned transactions. Indeed, tbe intent and acts looking to effectuate it bave, and could only bave, tbeir root in tbe property right of tbe bankrupt. They grew out of tbe soil afforded by the debtor’s ownership of tbe land, and from no other source could they bave come. Having admitted Randall’s ownership of tbe lands described in paragraph 4 and in tbe decree, tbe conveyances, whatever the estate attempted to be conveyed thereby, were immaterial, as tending to show title or its extent vel non, since appellant was estopped to refute tbe admission carried by tbe answer. — McGehee v. Lehman, Durr & Co., 65 Ala. 316; Grenham v. Ware, 79 Ala. 192.

There is no error in tbe record, and the decree is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and Andeeson, JJ., concur.