125 Ala. 673 | Ala. | 1899
Lead Opinion
The appeal in this case was taken on the 18th of June, 1896, from a decree of the city court of Anniston rendered June 3d, 1896, confirming the report of the register. The original decree, under which this reference was held and report made, was rendered on June 6,1895. This decree was rendered upon a final submission of the cause on the pleadings and proof, and. by its express terms settles and determines all of the equities of the bill, leaving nothing to be done but a simple reference to the register to state an account between the parties. Under the authority of Garry & Welpin et al. v. Jenkins, Moore & Co. et al., 109 Ala. 471, and the cases there cited, the decree of June 6th, 1895, is a final decree in every essential and from which an appeal would lie. v
The first six assignments of error relate to this decree, or to interlocutory orders prior thereto, and the appeal
The 7th, 8th, 9th and 10th assignments of error are to the effect that the court erred in the decree of June 3, 1896, in holding Jas. H. and D. 0.'Savage as trustees, for complainant. Upon an inspection of the record we find that this question was determined in the final decree on June 6th, 1895.
The 11th and 12th assignments relate to the decree of Juné 3d, 1896, and challenges the correctness of the decree in overruling appellants’ “last exception to the register’s report, excepting 'to his report finding complainant’s debt to be $2,324.” This debt of $2,324 was. ascertained to be balance due complainant by Pinson and others, and not by the appellants. The 'defendants Pinson, Hicks and Amberson, the judgment debtors, made no objection to this finding, and it is difficult to understand how the 'appellants Savage can complain, when even, if the credits contended for bjr these appellants as proper credits on the debt of Pinson and others to complainant, were allowed, they would not reduce the amount below that for which these appellants are held liable and 'accountable by the decree as trustees, etc.
We find no error in the record, and the decree of the city court is affirmed.
Rehearing
On Application for Rehearing..
Upon a further consideration of this case, the majority of the court is of the opinion that the decree of the chancellor of June 6th, 1895, is not a final decree, holding that all of the equities of the bill are not adjudged and determined by said decree, inasmuch as it does not decree an indebtedness by the respondents Pinson Bros. & Co, to the complainant. The writer, however, is of a different opinion, and for the following reasons: The bill avers a transaction between the complainant and Pinson Bros. & Company wherein the complainant sold to said Pinson Bros & Company a certain stock of hardware in the city of Gadsden at and for a given price; that five hundred dollars of the purchas© price was paid in>
The equities of the complainant’s bill are predicated upon the complainant’s debt against Pinson Bros. & Co., arising out of the transaction of the sale of the •stock of goods by complainant to said Pinson Bros. & Co., which said debt or claim was reduced to judgment, and the wrongful taking of such stock of goods by the defendants Savage in such manner as to constitute them trustees. The decree with particularity and in express terms adjudges the Savages trustees as to said stock of goods. Does it determine the other equity, i. c., the debt of complainant against Pinson Bros. & Co.? It must be ■conceded that without this debt, the complainant would not be entitled to the relief prayed for, and his bill would have been dismissed. The decree here recites: “on consideration it is ordered, adjudged and decreed that complainant is entitled to the relief prayed for in his bill of complaint.” This is not a mere opinion of the chancellor, but a solemn decree of the court. Nor is it conditional, nor qualified, by anything subsequently oc
The defendant D. O. Savage confessed in his answer that he had in his possession one hundred and seventy-five dollars, proceeds of the sale of the said goods by him, and to this extent his liability as a trustee under the decree was fixed, and the stating of an account by the clerk under the decree, would necessarily charge the Savages to this extent, if not more.
In Garry & Welpin v. Jenkins, Moore & Co., 109 Ala. 471, so far as appears from the statement of facts, the decree of the chancellor did not in terms adjudge that there was any debt due the complainants, but this court said in passing upon the question of the finality of the decree in that case: “All that remained to be done was a reference to the register to ascertain the amounts of the debts of the complainants, ‘the existence of their debts being confessed, and of the creditors coming in under the bill, and of the precise amount of Drennen’s liability as trustee -in invitum of the proceeds of the property sold by him, and the making of orders and decrees necessary to the collection of such amount and its distribution among the creditors — a mere matter of accounting and settling the amounts to be paid and received under the decree of June 29th, whereby the creditors’ rights to demand and receive, and Drennen’s liability and duty to account and pay, Avere fully and finally adjudged and decreed.” And in support of this, after adding, “under all the authorities this” (the decree of June 29th) “avus a final decree,” BrickelF's Digest is cited, where it is said : “When a decree is final upon the merits —adjudging the equities and settling the rights of the parties — an appeal will lie under the statute. If a decree possesses these properties, it is immaterial, so far
Haralson, J., concurs with the writer in the foregoing view as to the character of the decree in question, but as the -majority of the court are of the -contrary opinion, holding that the decree is interlocutory and not final, it follows that the appellee’s motion to strike the assignments of error 'based upon this decree -and the orders of the court anterior thereto, must be overruled.
This necessitates a consideration of those assignments of error. And the first question that is presented, and, we might say, the vital question, goes to the equity of complainant’s bill.
The bill purports to he a general creditors’ bill, filed on behalf of the complainant as a creditor of the firm or partnership -of Pinson Bros. & Co., and on behalf of such other creditors as may see proper to join in the 'bill. By the -averments in this bill it is shown that the resnondents, James H. Savage and D. O. Savage falsely and fraudulently represented and pretended to Pinson
As to what kind of fraud is within the statute, it is said in Bump on Fraudulent Conveyances (4th ed.)’, § 20 : “Nor is a fraud which is directed against the debtor and not against Ms creditors within the statute. The creditors of a party defrauded have no light, even though the fraud has the effect to diminish his means of paying them, to look into such fraud or unravel it. It is for Mm and Mm alone to do so, and if he chooses to acquiesce in the fraud, or suffers himself to be concluded of his right to investigate or undo it; his creditors must
The bill in this case does not allege any fraudulent transfer or conveyance, nor any attempted fraudulent transfer or conveyance by the debtor, and allegation and proof of this fact is essential to any relief under section 818 of the Code. It Is immaterial Avhat shape or form the fraudulent transfer may assume, AArhether by the direct act of the debtor, or by his collusion Avith another suffering it to be done through some legal proceeding, but it is essential that the debtor in some Avar participate knoAAÚngly in the fraud.
In the case of Builders and Painters Supply Co. v. First National Bank, 123 Ala. 203; 25 So. Rep. 311, the above section received our consideration and construction. In that case the bill aatis a creditors’ bill and Avas filed for the purpose of setting aside an alleged fraudulent attachment against the common debtor, but no fraud or collusion Avas charged against the debtor, and it Avas held by this court that the bill Avas Avithout equity. There, as in this case, the debtor, by the averments of the bill, Avas innocent of any Avrong of fraud, 'and was shown to be the victim of the alleged fraud. In determining the equity of the bill by reference to this statute, the controlling principle in the two cases is the same. And that is, that in the absence of any fraudulent transfer or conveyance or attempted fraudulent transfer or conveyance by the debtor, a creditor AAdthout a lien cannot resort to a court of equity to reach and subject property of the debtor of AAdiieh 'the debtor has been defrauded, or which has been Avrongfully taken from him.
In the case of the Builders and Painters Supply Co. v. First National Bank, supra,, other decisions by this court bearing on this question Avere there cited and commented on. We think it clear that the bill in this case can deiuve no Adtality 'by reason of any statute of this State. Can the bill find support in any recognized common law principle of equity jurisprudence? It cannot be denied that the complainant’s demand here sought to ¡be enforced is a purely legal demand. Nor can there be any doubt under the statutes and decisions
While the averments of the bill may be sufficient to constitute the Savages trustees ex maleficio as to Pin-son Bros. & Co., will this fact authorize and support a bill by a creditor without a lien of Pinson Bros. & Co. to enforce such a trust? There is no averment in the bill that a judgment against Pinson Bros. & Co. had ever been perfected into a lien by execution placed in the hands of the sheriff, or by registering under the statute. The complainant being, then, a creditor without a lien, and showing no other right or claim in or to the property of Pinson Bros. & Co. taken by Savage, does not show such a relation as would authorize a court of equity to establish and enforce a trust ex malificio for his benefit as against Savage. In Perry on Trusts, § 245, the principle is stated: “A person may become a trustee by construction by intermeddling with and assuming the management of property without authority. Such persons are trustees de son tort, as persons who assume to deal with a deceased person’s estate without authority are administrators de son tort ” A number of authorities are cited in note “a” to this section, but in most of them the bill was filed by the person whose legal title -was violated or from whose possession the property was taken, or by some one holding in privity with such person, such as an heir. We have been unable to find a case where a party with • neither a legal nor equitable claim or title in the property could have a bill to establish and enforce a trust for his benefit against one obtaining possession of the property from another through fraud. There are, however, cases to be found
In the foregoing discussion we have treated the case upon the theory of the complainant’s being a creditor of the firm of Pinson Bros. & Company, whose property is alleged to have been taken iby the wrong-doer. Coming to the proof in the case there is a fatal objection to any right of rcovery by the complainant under the bill. The theory of the bill is based upon the complainant’s right to recover as a judgment creditor of the firm of Pinson Bros. & Company, and the judgments offered in evidence are judgments not against Pinson Bros. & Company, but against the persons who compose the firm as individuals together with two other persons not members of the firm. We are, therefore, of the opinion that the court below erred in the decree rendered in favor of the complainant, and the decree must be reversed and a decree will be here rendered, dismissing complainant’s bill.
Reversed and rendered.