Watts v. Gayle , 20 Ala. 817 ( 1852 )

GOLDTHWAITE, J.'

This is nolflcase where a creditor seeks to obtain satisfaction of his debmout of the property of the defendant which cannot be reached by an execution at law, in which case, the right of the creditor to obtain relief, depends upon the fact of his having first exhausted his legal remedies, without being able to obtain a' satisfaction of his judgment, (Hadden v. Spadder, 20 John. 554; Beck v. Burdett, 1 Paige, 388; Roper v. McCook, 7 Ala. 319.) Neither is it the main object of the bill, ¿¿“remove an obstacle which stands in the path of the complainant in enforcing a lien, in which case he must, in order to entitle himself to the aid of equity, show^h'imself to be a creditor with a lien, by obtaining judgment, and placing his execution in the hands'of an officer. (Planters’ and Merchants’ Bank v. Walker, 7 Ala. 926; Dargan v. Waring, 11 Ala. 928; Pharis v. Leachman, at the present term.) The object of the complainant in the present case is, to enforce a claim against property which, it is alleged, has been fraudulently conveyed by an intestate in his life-time, and which is in the possession of a person who cannot administer it as the rightful representative, being bound by the fraud of his intestate, (Marler v. Marler, 6 Ala. 367; Pharis v. Leachman, supra) and which is the .only property that remains for the satisfaction of the debt, the intestate hav? ing left no assets. The principle which is asserted by the •bill, that a creditor may come into a court of'chancery against the personal representative, was asserted at an early period in the English courts, (1 Story’s Eq. §§ 530, 546, and cases therein cited) and has been frequently recognized in this court; (Leavins v. Butler. 8 Port. 380; Blakey v. Blakey 9 Ala. 391; Dement v. Boggess, 13 Ala. 140; Hunley v. Hunley, 15 Ala. 91;) and the principle applies equally to an executor in his own wrong, as to the rightful administrator. (Chamberlayne v. Temple, 2 Ran. 384; Hansford v. Elliott, 9 Leigh, 79; Newland v. Champion, 1 Ves. 105; Pharis v. Leachman, supra.) As it was not necessary for the creditor to have exhausted his legal remedies, or to stand as a creditor with a lien, in order to entitle himself to the assistance of a court of chancery, the allegation of the issue of the execution, and the return of no property upon the execution, was, for either of these purposes, entirely unnecessary, and need not be proved.

As to the other questions presented by the demurrer to the bill, it is true, that, as a general rule, to maintain a suit in equity on an administrator’s bond, all the obligors must be made parties, (Moore v. Armstrong, 9 Port. 679); and a demurrer would lie on this ground, unless a sufficient excuse is shown in the bill for the omission. The allegation, however, in the bill, is equivalent to a charge of insolvency, as against all the other parties; and the objection on this ground cannot, therefore, prevail. Neither is it necessary, in a bill of this character, to make the distributees parties. In the case of Hartley v. Bloodgood, to which we have been referred by the counsel for the plaintiffs in error, the object of the bill was, to subject the share of a distributee to the payment of a creditor ; and it was there correctly held, that the proceedings being directed against the distributee, as such, the other distri-butees were directly affected, and should have been brought before the court. The case of a creditor pursuing the personal assets is, perhaps, an exception to the rule; but be this as it may, it is well settled, both in England and this country, lhat in such case, the complainant may stop short at the personal representative. (Hollord v. Prior, 1 Mylne & Keene, 237; 7 Eng. Con. Ch. R. 22; Newland v. Champion, supra; Wiser v. Blackley, 1 John. Ch. R. 437; Story’s Eq. Pl. 100, note 2.) If such be the rule as against the personal assets of the estate,a fortiori must it prevail where tbe object of the bill is, to reach property fraudulently conveyed by the intestate, and to which the distributee can have no claim as such, being bound by the fraud of his intestate.

As to the decree of the Orphans’ Court against the admin-istratrix, no personal notice was necessary, and, in the absence of fraud, the decree must be regarded as conclusive. By the report of insolvency the court acquired jurisdiction, and after that time the administrator is considered as the actor, and held to notice of all subsequent proceedings. (Clarke v. West, 5 Ala. 117; Caruthers v. Ross, 18 Ala. 110.) The judgment being conclusive against the administratrix, the rule is, that it is equally so against the securities, who, in the absence of fraud, cannot litigate any questions, except those which may arise upon the factum of the bond, or its legal sufficiency. (Williamson v. Howell, 4 Ala. 693; McClure v. Colclough, 5 Ala. 65; Perkins v. Moore, 16 Ala. 10; Lamkin v. Heyer, 19 Ala. 228.) And the decree is conclusive, not only as to the demand of the plaintiff, but equally so as to the assets in the hands of the administrator. This result follows necessarily, from the decision in Clarke v. West, and Caruthers v. Ross, supra, holding that the effect of the report of insolvency, under the laws in force prior to the act of 1843, was, to divest courts of law of the jurisdiction of suits against the administrator, and confer upon the Orphans’ Court the power to make distribution of the assets amongst the credi. tors. This power renders it necessary for the court to ascertain and determine the assets, as well as the demand; and the judgment of the court is equally conclusive upon each of these subjects.

It is, however, insisted, that the intestate Jeremiah Watts was not concluded by the decree of the Orphans’ Court; that, if living, he could have claimed the protection of a Court of Chancery, for the purpose of letting in a defence, which he was prevented from setting up at the time of its rendition by accident, as well as mental derangement, with which disease he was at that time afflicted. The rule allowing parties to appeal td chancery against a judgment in another court, is of great strictness and inflexibility, and it is necessary that it should be so, as otherwise, the jurisdiction of that court would soon supplant that of all other tribunals. (French v. Garner, 7 Port. 459.) A court of equity, therefore, will not lend its aid, unless the party claiming its assistance can impeach the judgment by facts, or on grounds, of which he could not hare availed himself, or was prevented from doing it, by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his own part. Duncan v. Lyon, 3 John. Ch. 351; French v. Garner, supra.

The ground of accident relied on in the present case is, that Jeremiah Watts employed an attorney to attend to, and represent his interests on the final settlement of the estate of Henry West, and that instead of representing his interests, he, on that occasion, represented the claim of the defendants in error. Waiving the question as to whether the defendants could set up these facts in their answer by way of defence to the bill, or whether they should not have overhauled the judgment by filing a cross bill, we are clear, that the proof to sustain this allegation is not sufficient to bring it within the rules before referred to. The only diligence which is shown by the record to have been used by the intestate, was the speaking to an attorney, to attend to any and all business which he might have in any court. No definite instructions as to the defence were given — no particular case even mentioned — and it would not, we apprehend, be contended, that a Court of Chancery, upon this evidence alone, would, in the failure of the attorney thus employed to attend, be authorized to overhaul the judgment. To allow this, would be to encourage inattention and neglect on the part of the client, a cause which should furnish no ground for relief. Bateman v. Willoe, 1 Sch. & Le. 201.

In relation to the other ground upon which the opening of the judgment of the Orphans’ Court is urged, it may be remarked, that the evidence of but one witness is relied on, and standing by itself, we do not consider the testimony of this witness as amounting to full proof of any actual or positive derangement, until after the severe illness with which Mr. Watts was affected in July, 1842, after the rendition of the decree. He speaks, it is true, of his mind being affected in the year 1839, or 1840, so as to incapacitate him from any great mental exertion, and from attention to important business, but leaves us entirely in doubt as to tbe real extent to which his faculties were impaired. It is also rather singular, that this witness does not state a single fact upon which his opinion is based, except the failure of his memory, which is incidentally alluded to. We, of course, would not be understood as intimating that it is necessary, in every case, to give the facts upon which a professional opinion is founded; but in cases of this character, it is more satisfactory to do so. That his memory was impaired, is a circumstance by itself which is entitled to but little consideration, as this faculty is usually the first to feel the effects of age, and may frequently be seriously impaired, without materially weakening the powers of the judgment or understanding. Again: it devolved upon the plaintiffs in error to show clearly, that the condition of mind of their intestate was such as to reasonably account for his failing to make the defence. The person in relation to whom this proof is to be made, is a man of family, living for years in the community, and, during the whole of this time, managing his business, disposing of his property, not leading a secluded or isolated life, but, as far as we can form an opinion upon the whole testimony, occupying the relations to the neighborhood in which he resided which are usual with men of his position. It is incredible, that if the mind of a person thus circumstanced had been seriously affected for any length of time, it would not have been generally known in the community of which he was a member; and that but one witness is introduced to prove a fact of peculiar character- — -a fact which must, if it existed, have been known to other witnesses — is of itself entitled to great weight. Without, however, pursuing this subject further, it is sufficient to observe, that, taking into consideration all the evidence upon this point, it leaves the question at issue involved in too much doubt and uncertainty, and produces no conviction on the mind, that the failure to prepare and make the defence was attributable to the causes assigned by the plaintiffs in error.

No just reason, therefore, appearing upon the record, to authorize the letting in of the defence to the judgment, and the same being conclusive, not only against the administra-trix of Henry West, but also against her securities, and the proof upon tbe other points being full, the decree of the Chancellor must be affirmed, with costs.