Patterson v. Campbell , 9 Ala. 933 ( 1846 )

GOLDTHWAITE, J

The only question in this case is,, whether, at the present day, an insolvent debtor will be permitted to appropriate the proceeds of his labor to investments in real estate, for the advancement, or in the name of his children, in defiance of his creditors ? We are clear in the opinion there is no law to tolerate this condition of things. It is unnecessary to trace, step by step, the course of legislation on this subjection, or to 'show how courts of chancery first assumed the jurisdiction to subject equitable assets in payment of legal judgments. There was a time, doubtless, when the creditor, although armed with an execution, could not pursue all the property of his debtor at law, and on this idea, courts of equity would aid their judgments only when a lien would be created if the assets, instead of being equitable, were legal. The cases cited by the defendant’s counsel, show very satisfactorily the rise and extent of the chancery jurisdiction in England. We apprehend, however, that when our statutes gave the writ offi. fa. against the lands, as well as the chattels of the debtor, and provided also for garnishee process against Ms debtors, and who vtere possessed of Ms effects, that the jurisdiction of chancery immediately attached in its most unlimited sense. In this view, it is very probable there was no occasion to enact the statute of 1844, which confers jurisdiction in express terms. [Acts of 1843, 107.]

The question then resolves itself into one of right, not of jurisdiction, and it is said the debtor has the moral right to appropriate the proceeds of his labor to the advancement of his children in preference to his creditors. Of the moral duty of the parent to provide for the support and education of his •children, there can be no doubt, and perhaps as little, that it is paramount to the obligation to creditors ; but the providing for support is quite a different thing from investing them with the title to property, which in-most, if not all cases, must necessarily "be a secret trust enuring to the benefit of the parent. The consequences which would result to society from the sustaining such a proposition, are conclusive against it. If one can secure the profits of his labor to his children, why not the profits of his trade, of his occupation, or profession ? Instead of attempts by honest industry or successful exertion to create the means to pay creditors, the children of debtors would be the exclusive beneficiaries of their efforts, and might never be aware that their parents were otherwise than rich. It is said if the debtor chose he might work gratuitously, and the creditor would have no right to complain, and that there is no difference between this and giving the proceeds of his labor to his children. It may be so, but we apprehend the question, in either case, would equally arise, whether a trust was intended for the debtor’s benefit. The reasoning of the court in Dayle v. Sleeper, 1 Dana, 531, seems to us as unanswerable to shew, that the rights of creditors must be satisfied before the debtor can make, by his means, or his labor, a permanent provision for his children.

Decree affirmed.