Hurst v. Weathers , 15 Ala. 417 ( 1849 )

CHILTON, J.

It is very certain, that the deed from Mc-Collum, to the defendant, Weathers, being made to delay, hinder and defraud creditors, is void under the statute of frauds, as against a subsequent bona fide purchaser, even though such purchaser have notice of the prior deed; for though he has notice of it, he knows it to be fraudulent. Doe ex dem. &c. v. Manning, 9 East, 59; Carter v. Castleberry, 5 Ala. Rep. 279, and authorities there cited. And the purchaser may impeach such fraudulent conveyance, as well in law, as in equity. Ibid. But the point in the case before us is, are the plaintiff's so situated, as to enable them to raise the question ? It is not sufficient, that the defendant can take nothing as against them, being creditors of the fraudulent vendor, by his corrupt bargain. They must recover upon the strength of their own title. Unless the plaintiff's acquired their title by their purchase under the execution, they cannot recover, however fraudulent, and void, the purchase by the defendant may be.

Had McCollum lived, the sale to the defendant being fraudulent as against the plaintiff's, would, as to their judgment, have passed no title, but it would have remained in McCollum, subject to be levied upon, and sold in satisfaction of the judgment against him. Carter v. Castleberry, supra.

■ As between McCollum and the defendant, the conveyance was effectual and binding ; it was only void as to creditors and bona fide purchasers for valuable consideration. And as McCollum’s capacity to hold the title ceased by his death, the title at law must have vested absolutely in his vendee, or have descended to his heirs. It is insisted, that the title could not have descended upon the heirs, because they are concluded by the deed of the ancestor, and that the deed being void as to the plaintiffs, they have acquired the title by the execution sale, and sheriff’s deed. Further, that as the judgment creditor could not have execution of the land by scire facias against the heirs, unless he is entitled to the remedy which he has pursued, the legal remedy has been lost, by reason of the fraudulent sale, which the law declares ut-. terly void, so far as it affects the defrauded creditor.

In Harrison v. Campbell et al. 6 Dana’s Rep. 263, 268, the debtor, one Davenport, had made a fraudulent conveyance of his real estate, and died. The creditor had sued the administrator, and obtained judgment. He also sued the heir, who upon the issue of riens per descent, defeated the action. He then filed his bill against the heir and fraudulent vendee, to have the land sold for the satisfaction of his judgment, having exhausted his legal remedy by return of “ no property” on an execution. The court say that, “ regarding the action, and judgment against the heir, as a proceeding against the land itself, and to determine its liability, this anomaly would be prevented. 1. The heir being without interest in the land, is a stranger to both the debt and the land, and is yet made the medium of ascertaining the debt, and giving judgment against the land. 2. The question of fraud in the ancestor’s deed, on which the liability of the land depends, would be tried, when the only person interested in defending the title, is not, and cannot be, a party to the issue. 3. Consequently, the judgment against the land would not be conclusive, and when the creditor should attempt to avail himself of it by levying his execution, the person claiming it under the deed might contest its liability, and a new trial of the same matter, between different persons, and perhaps with a different result, would ensue.” See also Rawls v. Graham, 4 Monr. 122, where it is decided, that the remedy of the creditor upon the land is not by descent, in such case — that is, not against the heir, but against the fraudulent grantee of the intestate.

As the law exists in England, where the plaintiff in the judgment, after a return of nihil, upon a scire facias against the evecutor, may have such writ against the heir and terretenants, or against the terre-tenants alone, if the heir have been summoned, or there be no heir, or the heir have no land descended, the question as to the validity of the ancestor’s conveyance to the tenant in possession, who might set it up in bar of the extent upon the writ of elegit, perhaps might properly be tried. Be this as it may, our statute only authorizes the writ oí scire facias against the heirs and personal representative, in cases where lands have descended to the heirs, and the personal representative has failed to apply to. the orphans’ court for a sale of them. Clay’s Dig. 197, <§> 27. With us, it is necessary in a proceeding by scire facias, to have execution of the land by sale, in satisfaction of the judgment, to show that it descended to the heir, whose title by the judgment upon the scire facias, and sale made in pursuance of it; becomes divested; while in England, the heir is proceeded against, not as heir, but as terre-tenant, and the land is not sold, but extended by the writ of elegit. 3 Rep. 12; Cro. Eliz. 872; Cro. Jac. 506; see also Fitzpatrick et al. v. Edgar, 5 Ala. Rep. 499. We arrive, therefore, at the iConclusion, that the land, in this case, did not descend to the heir, and consequently, could not be made subject to the judgment by scire facias. And as by the death of McCollum before the issuance of the execution, the title in him was determined, it must be in the defendant, charged in equity With the payment of the plaintiff’s judgment, by reason of the fraud in the conveyance.

In Burk’s adm’r v. Jones 13 Ala. 167, we held that the lien of a judgment on lands, which attaches by virtue of the right which the judgment creditor has to have the lands extended by the writ of elegit, is destroyed by the death of the judgment debtor, and that upon the declaration of the insolvency of the estate, before a judgment on scire facias, subjecting the land, the estate became vested in the administrator for the purpose of paying all the debts pro rata. 2 Brock. Rep. 252; 2 Call’s Rep. 125; 4 Hen. & Munf. 57; 1 Brock. R. 170. So that it is clear no right to sell the land upon the execution against McCollum, which issued after his death, could exist by virtue of any supposed lien of the judgment. The case of Abercrombie v. Hall, 6 Ala. R. 651, and Burk’s adm’r v. Jones et al., supra, are in point, to show that an execution issued against ¿dead defendant is, as to his land, a nullity. See also, authorities on the brief of defendant’s counsel, and Stewart v. Nuckles, at.this term. From these authorities, it follows that the plaintiffs in error took no title by their sheriff’s deed. The charge of the court below was consequently correct. We apprehend there can be no question as to the equitable remedy of the plaintiffs after they shall have exhausted their legal reme'dy, if the facts be as stated in the bill of exceptions. Let the judgment be affirmed.