Rowe v. Johnson , 214 Ala. 510 ( 1926 )

I hesitate to prolong the discussion; but the cases cited by Judge SOMERVILLE seem to require some notice. My judgment is that they do no more than declare the familiar proposition that, in a suit by a judgment creditor to set aside a conveyance by the debtor for fraud, the grantee or other privy will not be heard to question the judgment in favor of the creditor, except on the ground of fraud. Thus in Bensimer v. Fell, 35 W. Va. 15, 12 S.E. 1078, 29 Am. St. Rep. 774, it was written that —

"Such judgment is evidence to the same extent against those claiming property that may be affected by the judgment derived from the judgment debtor, for the reason that parties claiming property under the judgment debtor are his privies in estate, since they claim under him the property affected by the judgment; and it is a cardinal rule, applicable to judgments, that they bind parties and privies, whether in blood, law, or estate. * * * But it is a rule that, to bind a man as a privy in estate, he must have acquired his interest after the judgment, not before. A grantee of land is not affected by a judgment against the grantor after the conveyance" — citing 2 Black on Judgments, § 549; Freeman on Judgments, § 162; Bigelow on Estoppel, 135; 1 Greenl. Ev. § 536; Kitty v. Fitzhugh, 4 Rand. (Va.) 600.

The cases cited by Judge SOMERVILLE are all cases involving alleged fraudulent conveyances — cases in which the proceedings were directed against specific parcels of land; cases in which the judgments were at least quasi in rem. 15 Rawle C. L. p. 630.

The case here is very different. The judgment here was a personal judgment against the guardian, binding on his sureties in the absence of fraud, it is conceded, because the surety is in privity with his principal. In that case the sureties are held as in privity with their principal, the guardian, because the guardian was required by law to settle his guardianship, and the due performance of that obligation was within the condition of his bond. Gravett v. Malone, 54 Ala. 21. In the case at bar I do not find such element of privity. The judge of probate entered into no covenant that bonds approved by him should be solvent. It was his duty to exercise care to that end, but that was his only connection, immediate or remote, with issues raised in this case, and that issue was wholly foreign to the issues raised in the action against the guardian and his bond.

But, as Judge MILLER has pointed out, there was no privity between the guardian and the defendant judge. Privity is sometimes said to be a matter of difficulty, but I have been unable to find any definition that would include the relation here in question. I therefore conclude that the judge was a stranger to the proceeding against the guardian, and is now shielded by an inflexible maxim of jurisprudence against injury by the judgment rendered. Coles v. Allen, 64 Ala. 98; McLemore v. Nuckolls, 37 Ala. 662; 2 Black on Judgments (2d Ed.) § 600; Freeman on Judgments (5th Ed.) § 444 et seq.

I have made this addition to the record, for the reason that the authorities cited for the first time in the dissenting opinion have not heretofore been noticed, and because it seemed not amiss to add two or three cases which appear to be right closely in point.