Jenkins v. Lockard's Adm'r , 66 Ala. 377 ( 1880 )

BBIOKELL, O. J.

The bill was filed by the appellant against the appellee, Kirkland, as the administrator of William Lockard, deceased, and Dora E. Lockard and others, voluntary donees of the intestate. The allegations are, that on the 22d day of April, 1867, the complainant and the intestate became the sureties of Martha Johnson, in a bond given by her on a claim of the trial of the right of property to certain personal property, on which the sheriff of Sumter county had levied an execution in favor of James M. Winston, against the goods and chattels of one Bobert Johnson. A copy of the bond is exhibited; and it appears to have been payable to said Winston, reciting the levy of execution, and with condition for the forthcoming of the property, if it was found liable to the satisfaction of the judgment in favor of Winston. The claim suit was pending in the Circuit Court of Sumter county, until the October term, 1872, when a trial was had, and the property was found subject to the execution, and its value assessecl at $2,811.05. The property was not forthcoming to answer the judgment; and the principal being insolvent, and the intestate having died previously, the complainant paid the said judgment. The estate of the intestate was declared insolvent on the 11th March, 1871, The claim of complainant against the intestate, for contribution, was presented to the administrator, within eighteen months after the grant of administration, and was filed in the Court of Probate, within nine months after the declaration of insolvency; but there are no assets in the hands of the administrator, to pay any part of it. In July, 1871, the intestate made several voluntary conveyances to the respondents, Dora E. Lockard and others. The prayer of the bill is for a condemnation of the property so conveyed to the satisfaction of complainant’s claim for contribution.

The respondents demurred, assigning numerous causes. The principal of these causes are — first, that the complainant is only a simple-contract creditor, who has not by a judgment at law established his debt; second, that the bond in whiph the complainant and intestate joined was void, imposing no liability upon them, because there was no statute requiring its execution. On the last ground, the demurrer was sustained, and the bill, dismissed.

It is well settled, by numerous decisions of this court, ■commencing with the cases of Pharis v. Leachman (20 Ala. 662), Watts v. Gayle (Ib. 817), and continuing to Halfman v. Ellison (51 Ala. 544), that a simple-contract creditor of a decedent, without establishing his debt by judgment at law, may, when there is a deficiency of assets to pay his debt in the hands of the personal representative, resort to equity to reach property the decedent may have conveyed in fraud ot his creditors. Voluntary conveyances are void, as to the existing creditors of the grantor, though no fraud may have been intended ; and whoever has a claim or demand, arising out of a pre-existing contract, though it may be contingent, is a creditor whose rights are offended by such conveyances, and can avoid them, when the contingency happens upon which the claim depends.—Bibb v. Freeman, 59 Ala. 612. The liability of a surety to contribution springs up when the common obligation is formed ; and from that time, each stands to the other in the relation of a creditor, who can avoid a voluntary or a fraudulent conveyance made subsequently, though before the common liability is satisfied. — Brandt on Suretyship, § 258. The bill contains equity, therefore, if the intestate was bound to contribute to the payment of the judgment the complainant has satisfied.

The statute of force when the bond was executed, was the act approved February 19, 1867, entitled “An act to amend section 2587 of the Code,” meaning the Code of 1852; and which was incorporated in the Revised Code of 1867, forming section 3016 thereof. The statute amended, section 2587 of the Code of 1852, required the claimant of property levied on by execution to give bond, with sufficient surety, payable to the plaintiff .in execution, and in double the amount of the execution, with condition to have the property forthcoming for the satisfaction of the judgment, if found liable therefor, <fce. The only amendment made was, to strike out the words toith sufficient surety; conferring on the claimant the right to the possession of the property, on the execution of his individual bond. The statute was intended for the benefit of the claimant — to relieve him from the necessity, the statute amended imposed, of giving sufficient surety on the bond. It did not prohibit him from the execution of a bond with sureties, if he chose to waive the benefit the statute gave. The release of the property from the levy of the execution — -the transfer of its possession from the officer making the levy, to the claimant — is a sufficient consideration for the bond, as to principal and sureties, when executed by them voluntarily.

It has long been a settled general rule, that a bond, whether required by statute or not, is good at common law, if entered into voluntarily, for a valuable consideration, and it is not, in obligation or condition, violative of law, or offen-sive to public policy.—Munter v. Reese, 61 Ala. 395; 1 Brick. Dig. 309, § 46 ; Brandt on Suretyship, § 12. True, if a bond is extorted by a public officer, as a condition on which be will render rights and privileges an individual has'the right to claim without bond, such bond would be void.—Whitted v. Governor, 6 Port. 335. And if it appeared that the principal in this bond claimed the property upon her own bond, and the claim was refused, and sureties exacted from her, there would be no liability resting on the sureties. That is not the case made by the bill. So far as is shown by its allegations, the bond was voluntarily executed by the principal. While the bond is valid, as a common-law obligation, no execution ought to have issued .on it. That under execution wrongfully issued, and which would on motion have been vacated, the complainant paid the judgment against the principal, does not affect his right to contribution from his co-surety. Without suit or compulsion, voluntarily, he could have paid the judgment, and demanded contribution. Stallworth v. Preslar, 34 Ala. 505; Brandt on Surety-ship, § 257.

The decree of the chancellor must be reversed, the demurrer overruled, and the cause remanded.