Henderson v. Farley National Bank , 123 Ala. 547 ( 1898 )

TYSON, J.

The bill in this cause was filed by a judgment creditor of respondent J,. M. Henderson against him, Alex Hendelson & Co., a firm composed of his son, Alex Henderson and his son-in-law, W. C. Black, Fox Henderson and Maggie Henderson, and seeks to have declared fraudulent certain conveyances and transfers alleged to have been made by him of certain property to Heñderson & Co. and certain property to Maggie Henderson, with the intent to defraud his creditors. As to Fox Henderson it is alleged in the 4th paragraph of the bill as follows: “Orator avers that for several years prior to the time of the filing of this bill said J. M. Henderson and Fox Henderson have been engaged in and doing business as partners under the firm name and style of J. M. Henderson & Co.; that their principal business was loaning monev to different persons for which they took notes and mortgages, and orator avers that there is noAv a large amount of money due said J. M. • Henderson & Co., by different persons, but orator is not informed as to the interest of said J. M. Henderson and the said Fox Henderson in said business of J. M. Henderson & Co., but orator charges as a fact that they are equal partners and equally interested in said business, but orator avers on information and belief and avers as a fact that they are equal partners and equally interested in said bus’’ness, but orator avers on information and belief and as a fact, that pending the suit against said J. M. Henderson in favor of orator in the circuit court of Pike county, Ala., of 'which the said Fox Henderson well knew, the said J. M. Henderson has been arranging to withdraw and withdrawing, and is now continuing to withdraw as much as possible the moneys and assets from said business, and with the aid of said Fox Henderson has been and is converting his assets invested in said business in money or bond or property of such character as that he can place it, and he has largely placed it, beyond the reach o.f his creditors so that it cannot be reached and subjected to the payment of orator’s judgment by ordinary legal process; and orator avers that the said Fox Henderson has been and is aiding and assisting said J. M. Henderson in placing his property and assets beyond the reach of creditors and beyond the reach of orator by purchasing the interest of the said J. M. Henderson in various debts and assets that they are mutually Interested in, with knowledge of the fraudulent intent and purpose of the said J. M. Henderson by paying him the money for same, or in other ways which are not fully known to orator.”

The bill further alleges that J. M. Henderson had money, property and assets amounting to" the value of $50,000 or other large sum, but that during the pendency of complainant’s suit in which the judgment was obtained he transferred this property and assets to the several respondents in such manner as to obstruct the collection of complainant’s judgment by levy and sale under execution, or he has disposed of his said property to the several respondents who had full knowledge of his financial condition and of the pending suit against him and of his intent and purpose to place the same beyond the reach of his creditors and received from them the money in payment of the same, “so that orator avers that the said J. M. Henderson has no property for the payment and satisfaction of orator’s judgment against him which can be reached by ordinary legal process against him, and orator avers that a discovery of moneys, property and assets of the said J. M. Henderson is necessary for the payment and satisfaction of orator’s said judgment; and to the end that orator may have the information necessary to discover the property and assets of the said J. M. Henderson in order to obtain payment and satisfaction of said judgment, the said J. M. Henderson and his several co-respondents are required to make full, true and complete answers to the interrogatories propounded.”

It has been too well settled by the decision of this court to be now questioned that a judgment creditor, without a return of nulla bona, or the issuance of execution, may maintain a bill to subject to the payment of his debt any property -which has been fraudulently transferred or attempted to be fraudulently conveyed by his debtor. — Code, § 818; Carter v. Coleman, 82 Ala. 177; Wooten v. Steel, 109 Ala. 563; McClarin v. Anderson, 109 Ala. 571.

Nor can it now be a matter of disputation that the judgment creditor may pursue property fraudulently conveyed although the debtor has other legal assets out of which the creditor may enforce the collection of his debt, and of necessity, the solvency or insolvency‘of the debtor is of no consequence.—McClarin v. Anderson, supra; Beall v. Lehman, Durr & Co., 110 Ala. 446, and authorities therein cited.

It is equally as well settled by the decisions of this court, that a bill in equity by a creditor, seeking to va: cate and set aside several conveyances of the debtor’s property as fraudulent and to subject the property so conveyed to the satisfaction of his demand is not multifarious because the several grantees, who are joined as parties defendant, acquired different portions of the property under separate and distinct conveyances executed at different times, and there is no" allegation that these several sales and conveyances had any actual connection with each other in any way, either in fact or intent.—Hill Bros. v. Moone, 104 Ala. 353, and authorities therein cited.

The bill is not one for discovery only, but was properly filed, and in this respect its sufficiency is not questioned, to subject the property of complainant’s debtor, which it is alleged was fraudulently conveyed to Alex Henderson & Co. and Maggie Henderson. Upon the allegations as to those two grantees, if true, there cannot be serious doubt of the right of the complainant to relief, independent of the discovery sought by the . bill. The discovery there sought is merely incidental to the relief; the complainant being entitled to have these conveyances declared fraudulent and to subject the property held by these grantees to the payment of the judgment, the grounds of demurrer to the bill predicated upon the theory that it should have been verified, were properly overruled.—Code, § 679; Burke v. Morris & Co., 121 Ala. 126, and authorities there cited; Dayton Plaster v. Thorne-Franklin Shoe Co. ante, p. 360.

What we have said disposes of all the grounds of the demurrer insisted upon in argument except the ninth, which relates only to the fourth paragraph of the bill and the relief prayed under it.

The special prayer for the relief against J. M. Henderson & Co. is that an accounting and settlement be had of the partnership business of the said J. M. Henderson & Co., and the interest of J. M. Henderson be ascertained and it be condemned to the payment , and satisfaction of the complainant’s judgment.

This ground of demurrer is as follows: “There is no equity in that part of said bill of complaint wherein complainant seeks to have the partnership of J. M. Henderson & Co. brought into this court and that the same be settled, upon the ground that complainant has not shown by its bill any right to have said partnership settled and have the interest of said J. M. Henderson therein subjected tó its,said judgment; it not having bought the interest of said Henderson in said partnership and has not shown any other interest which it has in the interest of J. M. Henderson therein, which would authorize it to have a settlement thereof in this court for the benefit of complainant.”

Appellants’ counsel in drawing this demurrer and their argument here have wholly misconceived the effect of the averménts of the 4th- paragraph of the bill, and the special prayer. If the allegations be true that Fox Henderson, is aiding J. M. Henderson, his partner, to convert Ms interest in the partnership assets into money for the purpose of putting it heyond the reach of his creditors by purchasing from him liis interest in the property with a knowledge of his purpose to hinder, delay or defraud his creditors, this stamps the transactions as fraudulent, and the complainant has the right to have such sale and purchase set aside. And after' securing the setting aside of the transfer- between them, the title of J. M. I-Iehderson to the- property having never passed, as against his* creditors, the complainant unquestionably has the right to have the court settle the partnership and condemn J. M. Henderson’s interest to the satisfaction of its judgment. There was no error in overruling this ground of demurrer.

We find no error in the record and the decree must be affirmed.

Affirmed.