128 Ala. 383 | Ala. | 1900
Lead Opinion
The bill in ¡this case is filed by the appellant, J. F. Washington as administrator of William Washington, deceased, to set aside an alleged fraudulent conveyance, and to subject certain lands in the hands of the alleged fraudulent grantee to the payment of the debt due from the grantor to the complainant’s intestate. The bill and exhibits show the following state of facts: In April, 1878/ Henry Bunn died intestate in Jackson county, Ala., leaving a large estate, consisting of real and personal property. On the 1st day of June, 1878, letters of administration were duly and regularly issued by the probate court of said county to John P. and Joel S. Timberlake as administrators of said estate, who entered upon the administration, having executed a bond in the sum of $50,000, with William Washington, complainant's intestate, J. F. Martin, T. M, Allison (who are not sued, they being dead and their estates insolvent) and Samuel C. Norwood, respondent’s grantor, as sureties. On the 11th day of August, 1892, said-'afiministrators made a final settlement in the probate court of said county, and decrees were rendered in favor of Beulah Bunn and John T. Bunn, minor heirs of said estate, for the respective amounts due on their distributive shares. On the 6th day of February, 1893, said decrees not having been paid, said Beulah and John T. Bunn filed their bill in chancery against said administrators, and J. F. Washington, as the administrator of the estate of William Washington, deceased, to enforce the collection of their said decrees. On ithe 7th day of May, 1898, said cause proceeded to final decree in the chancery court against said Washington as administrator in favor of said Beulah Bunn and John T. Bunn for the amount of their said decrees in the probate court, and which the complainant was compelled to and did pay. The present bill proceeds \ipon the theory that Samuel O. Nor-wood was liable to the complainant as co-surety with Ms intestate on said administration bond by way of contribution, to the amount of one-half of said decrees, and seeks to condemn the lands owned by him at the time of the execution of said bond., and subsequently
The statute of limitations relied on as a bar to this suit is as follows, Code 1896, § 2798: “Civil suits must be commenced after the cause of action has accrued within the' period prescribed in this chapter, and not afterwards.”
Section 2795: “Within ten years * * 2. Actions for the recovery of lands, tenements, or hereditaments of the possession thereof, except as otherwise herein provided.”
Section 675: “The provisions of this Code prescribing the time within which civil suits must be commenced after tire cause of action has accrued, apply to suits commenced by bill in chancery. The defense invoked by the plea rests, upon the foregoing provisions of the statute, and by them its merit must be tested. If the suit was commenced within ten years after the cause of action accrued, the plea can be no answer to the bill.”
With a statement of the above propositions this case
In Gindrat v. Western Railway of Ala. 96 Ala. 162, 166, a suit in equity involving the rights of remainder-men, it was said: “The possession of the defendant during his life, however long, notorious, open, adverse, and under claim of right against all the world, could not ripen into title, or afford a predicate for the presumption of a grant.under the doctrine of prescription, as against these plaintiffs. At no time during the life estate could they, or any one of them, have questioned this possession, and no laches in submitting to what they were without remedy to resist can be imputed to them.”
.While these cases relate to (the right of remainder-men to sue after the termination of the life tenancy, a
To sustain íthemplea, it must be done upon one or the other of the two following propositions: First, the. complainant’s cause of action must have accrued at the date when the respondent obtained his deed and went into possession; or, second, that (the statute of limitations began to run at the date when the respondent- obtained his deed and went into possession, regardless of when-the complainant’s cause of action accrued.
In Jones v. Massey, 79 Ala. 370, a creditors’ bill to subject property fraudulently conveyed, it was said: “It [the statute] does not exempt such suit from the general rule, which prevails in equity, as well as at law, that no suit can be maintained before the cause of action has accrued, and does not confer on a creditor the right to bring a bill to subject property to the payment of his debt before its maturity, and before he is authorized to maintain an action at law on the demand.” This rule is well settled by the authorities cited under proposition 3 above.
It cannot be doubted that until a final settlement of an administration there is mo ascertained liability against the sureties on the, bond, and until the liability on the bond becomes fixed by -the settlement, there is no cause of action, and the statute of linxitations does not run in favor of the sureties. So, in this case, no right of action accrued to any one, neither the distributees nor co-sureties, until a decree of the probate or chancery court was rendered ascertaining the devastavit, and fixing the amount of the sureties’ liability. If this complainant stood in the shoes of the distributees, and was bound to begin suit -within the same period allowed them, the bar would not be complete, as the final settlement was made in 1892. It is just as well settled that a surety’s right of action for contribution, at-
In Werborn’s Adm’r v. Kahn, supra, a bill in equity by a surety to subject personal property fraudulently conveyed by a deceased co-surety, it was said: “Complainant’s right to contribution did not arise until payment of the sum received in full satisfaction of the decree.”
It will thus be seen from the foregoing • authorities, that while a surety is a creditor within the statute of frauds, entitled to protection against fraudulent conveyances by his co-surety, yet his right of action against such co-surety does not accrue until he has paid the common obligation.
Counsel for appellee rest their contention in support of the plea upon two cases, and only two, decided by this court — Barclay v. Smith, 66 Ala. 230, and
In the case of Snedecor v. Watkins, supra, which was a bill to set aside a fraudulent conveyance made by the surety on a guardian’s bond, the facts show that the complainant’s cause of action against the surety accrued more than ten years before the filing of the bill. And the right to file the bill against the fraudulent grantee
Our conclusion therefore is, that while the complainant as a co-surety was a creditor within the statute of frauds, and entitled to protection as against voluntary and fraudulent conveyances, yet his cause of action did not accrue until he paid off and discharged the common obligation; and in no event could his cause of- action have accrued until the final settlement by the administrators in 1892, which was within the ten years necessary to complete the bar under the statute, and
Dissenting Opinion
dissenting. — The theory of the opinion in this case is, that this suit is for the recovery of lands, or in the nature of a suit for their ^recovery. That as the complainant’s -cause of action against tlie alleged fraudulent grantee did not arise until a short time before the filing of the bill, the statute of limitations did not commence to run in his favor, or rather against complainant’» right of action, until the cause of action accrued. I do not make an issue with the majority of the -court -upon the proposition that the complainant’s cause of action accrued only a short time before tin1 filing of the bill as against the fraudulent grantor; but I find nothing in the statute of limitations which excepts from its -operation -the running of the statute in favor of the. respondent, conceding that he acquired possession of the. lands under a fraudulent conveyance. And unless it can be held that the possession of lands of a grantee under- -fraudulent conveyance can never become adverse, but must be referred to the fraudulent conveyance under which he entered and took possession without reference to the length -of time he may have been in possession of -the lands at the time, of the filing of the bill, the position taken by my brothers is wholly untenable. It would be well to observe that we must bear in mind that the -creditor, upon a bill filed to declare fraudulent and v-oid a conveyance by his debtor, must have two -causes of -action, one in his favor against his debtor, and the other against ¡the fraudulent grantee named in the conveyance. The former can never arise until his debt is due and owing, and the latter only after a debt is shown
Before however discussing this question and citing the authorities, in support of my contention, I will review the authorities cited in the majority opinion for the purpose of showing that they do not sustain the proposition there laid down. In Werborn’s Adm’r v. Kahn, 93 Ala. 201, 206, all that is decided on this point is, that “complainant’s right of contribution did not arise until payment of the sum received in full 'satisfaction of the decree, which was in May, 1889. The causes of demurrer based on the laches of complainant and the statute of limitation of one year, are not well founded. The possession of a fraudulent vendee of personal property must continue, under the statute of limitations, for 'six years, to give him title as against a creditor of the vendor.”
In Proskauer v. Bank, 77 Ala. 257, 261, it is said : “The limitation which a fraudulent grantee of land may invoke for his protection, against a suit by the creditor of his grantor, is ten years — the period requisite (to bar an action for the recovery of the land. The
The case of Scruggs v. Land Co., 86 Ala. 173, arose upon a bill filed for the cancellation of a conveyance upon the ground of fraud in procuring its execution, and undue influence exercised by the grantee over the grantor, and is not in point. However, it was held in that case, that the statute of limitations of ten years was applicable, and a defense to the bill.
In Lockard v. Nash, 64 Ala. 385, which was a bill assailing a conveyance as fraudulent, it was said: “A voluntary grantee of property is held a trustee, by operation of law, for the benefit of the existing creditors of the grantor; and when the gift is of personal property, and is attended by no circumstances of concealment, if the creditors allow six years to elapse without suit to enforce their rights, the grantee may invoke the statute of limitations as a defense.”
In Snodgrass v. Bank, 25 Ala. 161, it was held that the possession of a slave by a fraudulent grantee gives him no title under the statute of limitations as against a creditor of the. vendor, if the latter could not by reasonable diligence have discovered the fraud within six years before the levy of his execution.
I will take occasion later on to refer to the cases of Lockard v. Nash, and Snodgrass v. Bank, for the purpose of showing that they support my contention. The above cases are all that are cited to support the proposition, that the action to set aside a fraudulent conveyance of land at the suit of an existing creditor of the grantor, is a suit in equity for the recovery of the lands. It is obvious from the examination of the above cases, that they do not support, in the remotest degree, this proposition.
The sole purpose and the only result which can be
Reverting to the question propounded, can a fraudulent grantee invoke, the. protection of the statute of limitations as a statute of repose? In Bump, Fraud. Conv., § 571, it is said: “Although a fraudulent conveyance is voidable as against creditors, yet the title of the grantee is within the protection of (the statute of limitations. Nor is he precluded from claiming the benefit of the statute by the fact that he is, for some purposes, treated as trustee for the creditors, for he is merely a trustee against his will, by operation of law.”
The leading case in this Stale on this subject, is Snodgrass v. Bank, supra, where the court, speaking to this question, said: “A possession under a fraudulent deed may be void, but it is no more so than one .acquired by a trespass, or any either unlawful act; and against possessions of the latter character, it is clear, the statute runs. We agree, that the statute is one of repose, and wouhl apply it to every case of adverse possession, except wliere the defendant, by fraud, has prevented the plaintiff from obtaining a knowledge of the facts upon which his action depends; and in
In Lockard v. Nash, supra, after holding that the donee in the voluntary conveyance was a trustee in inritum, and the trust an implied or constructive one, the court said, the statute of limitations operates to bar the enforcement of such trust. The same principle was recognized in Poskauer v. Bank, supra, and also in Smith v. Hall, 103 Ala. 235.
In Snedecor v. Watkins, 71 Ala. 48, which the majority of the court undertake to distinguish from the case under consideration, it is said: “It is an effort to- have the defendants, who are voluntary donees of the lands, declared trustees in inritum as to the lands conveyed to them by Bryan Watkins. Their adverse possession, is a complete answer to this, it having matured by lapse of time into -a good title.” Indeed, it is the established doctrine of all the courts, that the statute of limitations runs as- against implied or constructive trusts. — Martin v. Bank, 31 Ala. 115.
The policy of the statute of limitations is to give repose to titles “The benefits and immunities they confer, are for the. repose of adverse holders, who have been in continuous possession, asserting ownership, for the length of time the statute prescribes. In favor of defendants; ‘adverse possession, -open, notorious, accompanied with acts of ownership, bars -an action for the recovery of lands, without any reference to the bona, fides or color -of title, under which the adverse holder claims ownership. — Smith v. Roberts, 62 Ala. 83. ‘When the statute of limitations lias completed a bar, it gives to the party in whose favor it has run a right of entry, upon which he may prosecute ejectment, or, if sued, defend himself.’ — Doe, ex dem., v. Eslava, 11 Ala. 1028.” A right to lands, acquired by ten years’ advesfee holding, with the exceptions the statute provide, arms such holder with all the powers of offense and defense, which an unbroken chain of
The case of Malloy v. Paul, 2 Tenn. Ch. 156, involved the identical question involved in this case. Chancellor Cooper, in a very exhaustive and learned opinion, reviews all the cases on the subject. He said: “In Reeves v. Dougherty, 7 Yerg. 222, it was held that, where the possession of personal property has been acquired by a fraudulent'sale, the statute of limitations begins to ran from the time the fraudulent grantee obtained possession, and, if the title of the fraudulent grantor has been vested In the grantee by the statute, the judgment creditor of the grantor is barred also. The question is fairly discussed upon principle. ‘The object here,’ says Catron, C. J., is to aid an execution at law; to give effect to a legal writ and legal right because of the concurrent jurisdiction in equity; to relieve against the fraudulent conveyance tending to hinder the creditor of the grantor.’ * * * 'The complainants come in asserting their debtor’s right to the property, treating — as they have the right to do — the fraudulent conveyance as merely void.’ * * * ‘But the debtor’s right of property was gone when ¡the bill was filed, and the complainants are equally barred.’ ‘There is,’ adds the learned judge, ‘no fair distinction between a lien by execution and a lien by an implied trust otherwise arising.’ At most, the
Tbe majority opinion entirely leaves out of view the purpose of the statute of limitations as a statute of repose, and engrafts upon section 2595, which provides that the limitation of ten years shall bar all actions for the recovery of lands, tenements, and hereditaments, or the possession thereof, an exception in favor of the complainant. .