40 So. 407 | Ala. | 1906
We concur with the chancellor in holding that the sale of the car load of oats was not fraudulent and void- under the laws of Alabama. — Pol-lack v. Meyer, 96 Ala. 172, 11 South. 385 ; Meyer v. Sulzbacher, 76 Ala. 120 ; Hodges v. Coleman, 76 Ala. 103 ; Crawford v. Kirksey, 55 Ala. 282, 27 Am. Rep. 704. It is true this court has held that if the creditor goes beyond the collection of his debt and thereby secures a reservation or benefit to the debtor, the conveyance will not stand. And conveyances of this character have been condemned where property has been conveyed partly in payment of an antecedent debt and for a new or subsequent consideration, upon the idea that when the creditor goes beyond the collection of his debt, and obtains property from an insolvent debtor, he is assisting him in getting his property beyond the reach of his other creditors. — Levy & Co. v. Williams, 79 Ala. 171. It is
The chancellor held that, Avhile the conveyance Avas not fraudulent, it Avas such a preference as is prohibited bAr section 60 of the bankrupt act of 1898. — Act July 1, 1898, c. 541. 30 Stat. 562 [U. S. Comp. St. 1901; p. 3445]. Conceding that the facts supported his conclusion, we become confronted by a qusetion of jurisdiction. Has a trustee in bankruptcy the right to subject, in the chancery court, property not fraudulently conveyed, but merely conveyed by Avay of preference under said section 60 of the bankrupt act of 1898? Independent of the statute a creditor could not resort to the chancery court to set aside a fraudulent conveyance or subject property so conveyed to the payment of his claim, unless he had a lien or had obtained a judgment at Iuav Avhich could not be enforced without the aid of this court, — Reese v. Bradford, 13 Ala. 838 ; Sanders v. Watson, 14 Ala. 198 ; Marble City v. Golden, 110 Ala. 376, 17 South. 935 ; Dickinson v. Nat. Bank, 98 Ala. 546, 14 South. 550. The rule requiring a lien and exhaustion of legal remedies was enlarged by a statute, iioav contained in section 818
We do not mean to hold that a trustee cannot avoid a preference, and that the state court is not open to him for á recovery of the property or its value, as is provided by the act of bankruptcy, but simply to hold that such a conveyance, is not one which can be avoided by a bill in chancery, unless there is an averment and proof of fraud. — Turrentine v. Koopman, 124 Ala. 211, 27 South. 522. What we hold in the case at bar does not conflict with the principles declared in the case of Andrews v.
The decree of the chancellor is reversed, and a decree is here rendered dismissing the bill, but without prejudice to complainant’s right to treat the sale as a preference under the act of bankruptcy and to proceed further in the proper forum.