131 Ala. 91 | Ala. | 1901
The bill in this case was filed by Henrietta Dwyer, a creditor by judgment in tort of Prank G. Taylor, against said Taylor, his son, J. H. Taylor, and the Merchants and Planters National Bank. J. P. Bullock was afterwards made a party defendant
The bill in its first aspect is not attacked by the demurrers (except in so far as the whole hill is assailed for failing to offer to do equity and because it states no case for equitable relief in its other alternatives), and it needs only to be said here that the averments in this alternative clearly present a case of a conveyance of property by a debtor on a simulated consideration to hinder, delay and defraud his creditors.
The averments intended to support the third alternative basis of the relief prayed are, in our opinion, quite sufficient to that end. Tliey are to the effect that there was no real sale of the. property, but the mere pretense of a sale to cover a transaction which in truth and in fact involved a mortgage to secure a pre-existing debt, the bill of sale operating by secret agreement of the parties to it as a mortgage only. On these averments there was a secret benefit reserved to the insolvent debtor which opens the transaction to the successful assault of creditors. — Hill v. Rutledge, 83 Ala 162; Steiner v. Scholze, 114 Ala. 88.
Tbe fourth alternative presents a case for relief against a transfer of property by an insolvent debtor to another in secret trust for himself.
The bill thén is to be taken as alleging that -with intent to' 'hinder, delay of defraud oratrix and- his creditors generally F. G-. Taylor transferred the property to J. II: Taylor upon a -simulated and non-existent consideration, or that in the form -of an absolute sale- F. (,t. mortgaged the jpropérty to J. H. to secure a bona ficlc debt, or that the former sold it to the latter in payment of a bona fide and' commensurate debt, or that he conveyed the property 'to J. H. in secret trust for his, the grantor’s, own use and benefit. The third alternative as here' stated presents no case for1 relief, and, of necessary- consequence, the bill failing in one disjunctive aspect fails as a whole to-make a case of equitable cognizance; and the demurrer going to this point should have been sustained'.' '
The bill is, however, obviously capable -of amendment, by striking out the defective disjunctive averment or otherwise; and, therefore, tlie'.motion to -dismiss" it for want of equity cannot he rested upon that infirmity.
The bill considered as one for the appointment of a receiver is further objectionable because of its-failure to offer to do equity in respect of the debt due the Merchants and Planters National Bank secured by a mortgage on the property proposed to be subjected to'complainant’s judgment. It is ■ true ■ that mortgagees now held by Bullock and that the bill alleges that he holds it fraudulently for the Taylors, who, it is further averred, paid it off and had it transferred to him to hinder, delay and defraud the complainant, but it should notwithstanding these averments, which are made on information and belief, offer to pay Bullock the balance due on the mortgage debt in the event it should be determined that he is a bona fide holder of it. But this defect being curable by amendment, fur
The pleas of both Frank G. Taylor and of J. H. Taylor were properly held insufficient by the chancellor. Frank G. Taylor never had any right of exemption against the claim in tort of the complainant which she has reduced to judgment in trover. That- her claim was in tort is concluded for nil the purposes of this case by the judgment she recovered. That it was in existence at the time of the transfer of his property by Frank G. to J. H. Taylor is alleged by the bill and not controverted. The covinous conveyance by him of property which was exempted to him from levy and sale for the payment of debts was as much a fraud on complainant in respect of her claim against which no property is exempt as if there were no exemption laws.
There is no merit in the contention that the bill is without equity for that it discloses that complainant had an adequate and complete remedy at law by having her execution levied on the property transferred by F. G. to J. H. Taylor. The transfer was an impediment to the efficacious pursuit of her legal remedy, especially in view of the fact that it would have been necessary for her to indemnify the sheriff before he would or was in duty bound to levy the execution, and if it was a fraudulent transfer, as alleged, she had a right to come into Chancery to remove the obstacle, thus erected by the Taylors to a proper and satisfactory subjection of the property to the payment of her judgment. And having this standing in a court of equity her remedies there are the same as if she had no semblance of a legal remedy, and it is no objection to the appointment of a receiver that she had it in her power to take the property on .execution by giving indemnity to the sheriff.
For the reason that the bill did not make a case for equitable interposition in one of the disjunctive sets of averments relied on for relief, the receiver should not have been appointed by the register in the first instance and the appointment should not have been confirmed by the chancellor on the appeal to him. — Strickland v. Gay, Hardie & Co., 104 Ala. 375; Lehman, Durr & Co. v. Griel Bros., 119 Ala. 262.
Affirmed in part, reversed and rendered in part, and reversed and remanded in part.