Reed's Adm'r v. Minell , 30 Ala. 61 ( 1857 )

"WALKER, J.

We avoid discussing the question of the validity of the report and decree of insolvency, because that may be conceded to the* appellees without affecting the result. The effect of the declaration of insolvency, in 1839, was not to withdraw the claims of creditors from the jurisdiction of the common-law courts, under a subsequent administration: it was a defense available only to the administrator who made the report of insolvency.— Lambeth v. Garber, 6 Ala. 870; Cameron v. Clarke, Smith & Co., 11 Ala. 259; McLaughlin v. Nelms, 9 Ala. 925; McBroom v. McBroom, 19 Ala. 173. Consequently, there is no reason why it should present an excuse for not suing after the expiration of the first administrator’s term of office. TJpon the report of insolvency in 1839, as the law then stood, it was the complainants’ privilege to have prosecuted their claim, before the orphans’ court, to a judgment against the administrator for their distributive share; which judgment would have been, at once, evidence of the demand, and of the assets in the hands of the administrator. — Lee v. Loachman, 22 Ala. 452; Watts v. Gayle & Bower, 20 Ala. 817. Conceding that there were no assets whatever which could be administered by the administrator, yet this would not affect the question, because, if the complainants now have a right to subject the property alleged to have been fraudulently conveyed to Wm. B. Oliver, that right existed as fully in 1839 as it now exists.

But, if the time up to the expiration of Need’s administration be deducted, it would not avail the complainants. The statute of limitations, having commenced to run, would not step in consequence of the vacancy in the administration. Upon this point, our decisions are conclusive. — Richardson v. Williams, 5 Porter, 515; Lee v. Leachman, 22 Ala. 455; Howell v. Hair, 15 Ala. 194; Harwell v. Steel, 17 Ala. 372; Lowe v. Jones, 15 Ala. 545. The reason given by tbe cases, for tlie subtraction of tlie period of six months after the commencement of administration, is, that the statute absolutely prohibits a suit during that time; and, if it were counted, a bar might be effected as the result of the statutory ¡interference, and not of the plaintiff’s laches. That reason has no application in this case. It was in the power of the [creditor to have had an administrator appointed after the expiration of the first administration. — Hutchison v. Tolls, 2 Porter, 44; Posey & Coffee v. Br. Bk. at Decatur, 12 Ala. 802, opinion by C. J. Dargan; and authorities cited supra.

It is contended for the appellees, that their ignorance of the fraud in the conveyance by their debtor is a sufficient excuse for their failure to sue sooner. "We do not consider tlie question, whether the statute of limitations would protect the title of the fraudulent grantee. That is not the question here. The question is, will ignorance of the fact that a debtor has made a fraudulent conveyance, take away from the debtor the benefit of the statute of limitations against the debt. We know of no principle or authority, upon which the position can be maintained, that a debtor is denied the privilege of pleading the statute of limitations against the debt, because he has made a fraudulent conveyance, and successfully concealed it. If it be said that the debtor had no other property than that which was fraudulently conveyed, and that the improbability of making his money had prevented the creditor from suing; it may be replied, that the same argument would prevent a man who had been insolvent from pleading the statute of limitations, when he had become solvent after the completion of the bar. We are not authorized to imply such an exception to the statute. The statute is pleaded by the administrator, and we can perceive no reason why he should not as well defend in the chancery court, upon the ground that the claim is barred by the statute, as if he had been sued at law; and it will not be denied that, at law, the defense would be complete. »

If this were merely a proceeding to enforce a lien on property, the fact that the statute of limitations had barred a suit on the debt would be no defense. — Cullum v. Br. Bk. at Mobile, 23 Ala. 797; Duval’s Heirs v. McLoskey, 1 Ala. 710; Jones v. Jones, 18 Ala. 248. But the com-jalainants have no lien, and are simple-contract creditors; and the bill does not assert, nor is the suit brought to enforce, a lien.

The chancellor’s decree is reversed, and a decree must be here rendered, dismissing the complainants’ bill. The complainants must pay the costs, both in this court, and in the court below.

Bice, C. J., not sitting.