Dent v. Smith , 15 Ala. 286 ( 1849 )

DARGAN, J.

We will first examine, whether the court erred, in sustaining the demurrer to the plea filed by the claimant, setting forth the decree of insolvency of the estate of Charles Lewen, against whose executors the judgment was rendered, on which the execution levied on the slaves, was issued. In the case of Betts v. Taylor, 8 Porter, 564, this court said, that on the trial of the right of property, levied on by execution, the plaintiff need not produce the judgment on which it was issued, nor can the claimant be permitted to litigate its justice, or to show that the defendant in execution was dead at the time it issued. And in the case of Fryer v. Dennis, 2 Ala. 144, it was said, that a claimant of property levied on by execution, cannot object to irregularities either in the judgment, or execution. In Harrell v. Floyd, 3 Ala. 16, this court held, that on the trial of the right of property, the claimant could not question the validity of the judgment, or the regularity of the execution, and to the same effect is the case of Collinsworth v. Horn, 4 Stew. & Por. 237, and also Perkins and Elliott v. Mayfield, 5 Porter, 182.

These decisions sufficiently show, that the claimant of the property, on the trial of the right under the statute, authorizing such trial, cannot be permitted to assume the position of the defendant in execution, and to contest its justice, or regularity. The only question that can be tried, is, whether the property is liable to the execution. The claimant cannot show, on this trial, that the judgment was obtained by fraud, or that it has been paid, or otherwise discharged. These authorities show, that the court did not err in sustaining the demurrer to the plea puis darrein continuance. But independent of this view, this court held, at the last January term, that the statute of 1843, (Clay’s Dig. 194,) requiring all claims to be filed in the clerk’s office, within six months from the time such estate shall be declared insolvent, was intended merely to operate as between the creditors of such estate, and to give a preference to those creditors, who should file their claims in the manner prescribed by the act, over those who failed to do so ; but that a failure to file the claim with the clerk, under this act, would not operate as an ex-tinguishment of the debt, in favor of the administrator, or distributees, if there be a surplus left, after the payment of the claims filed, according to the provisions of the statute. The judgment then, as against the distributees, was not discharged, and could not be enforced, against property liable to creditors, but which could not be treated by the executor as assets, or subjected by him to the payment of debts; for the statute referred to, can operate only on the assets of the estate, which can be treated and administered as such, by the executor or administrator. The judgment then, on which the execution issued, was not discharged, or satisfied, by the failure of the plaintiff to file it, as required, in the orphans’ court, after the estate of Charles Lewen was declared insolvent. It was only postponed, in reference to the assets of the estate, in favor of such creditors, as had filed their claims; and as the property levied on, whether liable to the execution or not, cannot be said to be assets of the estate, because by no possibility can those slaves be claimed, or reduced to possession, by the executors of Charles Lewen. If therefore, it were even competent to show, that by matter subsequent to the levy of the execution, and the interposition of the claim, the execution has been discharged, the facts set forth in the plea were insufficient for this purpose; for notwithstanding the decree of insolvency, and the failure to file the judgment in the orphans’ court, the plaintiff in execution may still proceed to subject such property, as is liable to creditors, but which cannot be treated as assets of the estate.

The next question we propose to consider, is the charge of the court, and the refusal to charge as requested. The rule is settled by the decisions of this court, that a voluntary conveyance by a debtor, is void as against his creditors, who are then such. See Miller v. Thompson, 3 Porter, 196; Cato v. Easly, 2 Stew. 214; 2 Ala. 648; Moore v. Spence, 6 Ala. 506. These decisions fully show, that if Charles Lewen, the grantor, was the owner of the slaves at the time he executed the deed to Dent, as trustee for his daughter, Mrs. Thomas, the deed was void as against the plaintiff in- execution, whose debt then existed, although the deed was valid as against the grantor, and his representatives.

To avoid the effect of this principle of law, the plaintiff in error contends, that at the time of the execution of the deed, the slaves in fact belonged to Mrs. Thomas, in whose possession Martha had been, for twelve or fifteen years before the execution of the deed; and her son from the time of his birth.

It must be true that Charles Lewen either had title to the slaves at the time the deed was executed, or he had none. If he had title, the deed is void as against the plaintiff in execution, whose debt then existed; if he had no title at all, he could convey none by his deed to the claimant, and if the deed conveyed no title to Dent, because the grantor had no title to convey, the claimant cannot insist on the title either of Mrs. Thomas, or her husband, to defeat the execution. McGrew v. Hart, 1 Porter, 175. If we were to permit a claimant, to interpose the title of a third person to defeat an execution, it would be to permit one man to redress the wrongs done to another, and thus to take charge of his rights, in which the claimant had no interest. If this could be done, the title of the third person would be bound by the decision, and hence the right, and title of the owner in fact, would be bound by a proceeding to which he was not a party. This view fully vindicates the propriety of the decision in the case of McGrew v. Hart, and shows, that the claimant in the trial of the right of property, must rely upon his own title, and cannot be permitted to insist on title in another, to which he is a stranger. The charge of the court was also correct. The court also properly refused to give the charges requested, for if Dent received any title by the deed, or if Lewen had any to convey, the deed was void as against the plaintiff; and if Lewen had no title at the time the deed was executed, Dent took none by the deed, and if he took no title by the deed, he cannot be permitted to assert the rights of others, who cannot be affected by the proceeding, in this suit, to which they are not parties.

The only remaining question under the view of the law here taken, is, will this court reverse the judgment, rendered on a verdict, in the trial of the right of property, because no formal issue was made up in writing. Either party had the right in the court below, to insist, that the issue should be made up in writing, which the jury was impanneled to try; but if this was not done, and the parties went to trial as if it had been done, neither party can assign in this court for error, that the issue was not made up.

In the case of Lucas v. Hitchcock, 2 Ala. 287, the judgment entry showed that the parties appeared, and a verdict on the issue joined was rendered, but no formal issue was found in the record. This court presumed the issue was properly made up, although not found in the record, and refused to reverse the judgment. Whether the issue in fact was reduced to writing, and filed, as part of the record, we hold to be immaterial. The parties had the right before going to trial to insist, that the issue should be so made up ; if this was omitted, or waived; or not insisted on in the court below, it cannot be assigned in this court for error.

There is no error in the record, and the judgment must be affirmed.