Brown Co. v. Henderson , 123 Ala. 623 ( 1898 )

McCLELLAN, C. J.

The J. B. Brown Co. and others, .creditors of J. C. McKenzie, filed a bill in behalf of themselves and of all other creditors of McKenzie who should come in and make themselves parties, against J. C. McKenzie, the debtor, and J. M. Henderson, who was alleged to have taken McKenzie’s property under and through a fraudulent and collusive attachment, and sought to subject the property in the hands of Hendersent to the payment of their debts and the debts of other creditors, or to hold him accountable for the value thereof as trustee in invitum. In that case a decree was rendered against Henderson for about eleven thousand dollars, and upon it an execution issued against Henderson, which was returned “No property.” Thereupon the present bill ivas filed by the complainants in the former bill and in said decree, against McKenzie, J. M. Henderson and Maggie C. Henderson, the wife of J. M. Like the former bill, this one is filed by creditors of McKenzie “for themselves and all other creditors of J. C. McKenzie” entitled to the benefit of the decree against J. M. Henderson. It charges that Henderson has fraudulently conveyed certain property to his wife, said Maggie 0., and its prayer for relief is( as follows: “That it may be referred to the register to ascertain and report the several amounts due to your orators severally; and that a decree be rendered that they recover the samé against J. O. McKenzie, that it may be decreed that the said lot above described be subjected to the payment of orator’s said debt, or, if not, that the said lot be charged for their benefit to the amount and extent of the assets of the said J/ M. Henderson expended in the purchase and improvement of* the same, and that the said Maggie C. Hendeyson be charged with the value of the use and occupation or rent of said lot since it was purchased and went into her possession; and that said J. M. Henderson be decreed liable for all the assets of said J. C. McKenzie converted by him through the instrumentality of said attachment suit, and through his liability that the said house and lot be sold or charged as above prayed.”

It does- not appear by the bill affirmatively that the debts of the complainants, the J. B. Brown Co. and the Bergner & Engel Brewing Co., against J. C. McKenzie were ascertained and decreed in the former suit; and it does appear from the bill that the debts of other creditors of McKenzie, all of whom are entitled to come in under the bill, to prove their claims and to have decrees against him for the amount thereof, respectively, have not been ascertained or decreed against him. Such ascertainment and decrees are essential to the full relief appropriate to the. case made by the bill. And, of course, decrees could not be passed against him in their f or in favor of the named complainants, and therefore neither the named complainants nor his other creditors in whose behalf also the bill is exhibited would be entitled to a decree subjecting Henderson’s equitable assets to the payment of McKenzie’s debts, in the absence of McKenzie from the case: He is entitled to his day in court on the question of his indebtedness to the alleged creditors in whose behalf the bill is filed, the establishment of such indebtedness is a necessary predicate for the relief sought against Henderson and his wife in respect of the property alleged to have been fraudulently conveyed by Henderson to her, and he is, of consequence, a necessary party to the bill. The contrary conclusion reached by the chancellor appears to be based upon the idea that “all question as to the liability of McKenzie was conclusively determined by the former decree.” We do not find this to be the fact on the averments of the present bill, and hence we do not concur in the conclusion reached below that McKenzie is not a necessary party to it.

The decree sustaining the demurrer to the bill and dismissing it out of court will be reversed, and a deoree will be here entered overruling tlie demurrer, and allowing respondents thirty days in which to answer.

Reversed and rendered.