Battle v. Reid , 68 Ala. 149 ( 1880 )

BRICKELL, C. J.

These are cross appeals from a decree rendered in the Court of Chancery, in a cause wherein John Reid, jr., as surviving member of fl?e firm of John Reid & Co., was complainant, and William A. Battle and others were defendants. The complainant is a simple-contract creditor of Alfred Battle, deceased, and the purpose of the bill is to subject land he in his life had, in consideration of love and affection, conveyed to his daughter-in-law and her children, his grand-children. At the instance of a simple-contract creditor, a court of equity will intervene, and subject to the payment of his debt property which a deceased debtor has in his life fraudulently aliened, or aliened merely upon a good consideration. The court will not, however, intervene, unless a deficiency of legal assets to pay and satisfy the debt is averred, and proved if the averment is not admitted.—State Bank v. Ellis, 30 Ala. 478; Grigsby v. Quarles, 31 Ala. 172 Halfman v. Ellison, 51 Ala. 543. It is only because of the inadequacy of legal remedies against the personal representative, that the court intervenes. These remedies are not inadequate, if there are legal assets sufficient for the payment of the debt, which ought in the course of due administration to be so applied.

The original bill contained no averment, negativing the existence of legal assets of the deceased debtor, sufficient to pay and satisfy the complainant’s demand ; and it was, consequently, without equity.—State Bank v. Ellis, supra; Quarles v. Grigsby, supra; Pharis v. Leachman, 20 Ala. 662; Watts v. Gayle, Ib. 817. There was, however, an amendment of the bill, intended to cure the defect, by adding to the third section, or paragraph, the averment, “ and that said Alfred Battle died insolvent.” The truth of this averment, though denied by the answers, was, by the counsel for the adults, and the guardian adlitem of the infant defendant, admitted in writing, as is recited, to avoid the expense of taking evidence of the fact; and the admission forms part of the evidence on which the hearing was had.

2-3. The donees invoke the statute of limitations of three years, as a defense. This statute applies only to open accounts ; and when at law it is pleaded ás a defense, an essential averment of the plea is, that the claim or demand upon which suit is founded, is an open account.—Winston v. Trustees, 1 Ala. 124; Caruthers v. Mardis, 3 Ala. 599. The same rule applies in a court of equity.—Taylor v. Forsey, 56 Ala. 426. If, upon tbe face of tbe bill, it is apparent tbe claim or demand of tbe complainant is barred by lapse of time, or by tbe statute of limitations”, tbe defense is available, in a court of equity, on demurrer, as well as by plea, or answer. Tbe bill does not show that the demand of the complainant against Alfred Battle was, before tbe taking of his promissory note, an open account. On tbe contrary, tbe averments are, that at particular times merchandise was sold and delivered him, Ifor specified prices, or aggregating a specified sum. No other demand or claim is an open account within tbe meaning of the statute, than one in which some term of tbe contract is left open, undetermined by tbe parties ; or when there are current running dealings, and tbe account, because of contemplated future dealings, is kept open.—Sheppard v. Wilkins, 1 Ala. 62; Goodwin v. Harrison, 6 Ala. 438. Tbe answer, without any averment that tbe demand was an open account, avers, generally, that it was barred by the statute of limitations of three years. This can not be deemed sufficient.

4. Mrs. King was an existing creditor of tbe donor, at tbe execution of tbe conveyance; Though a creditor at large, it was her right, by filing a bill to avoid tbe conveyance, to acquire a lien upon the lands, superior to that which subsequent judgment creditors could have acquired.—Dargan v. Waring, 11 Ala. 988. Having this right, she accepted a mortgage of tbe lands from tbe donor, which was foreclosed by decree, in a cause to which the donees were parties, before tbe filing of tbe complainant’s bill. It is difficult to perceive any thing in the transaction offensive to the rights, or of injury to tbe complainant. To say tbe most of it, tbe parties merely accomplished that which a court of equity would have compelled. That is well done, which tbe court would have ordered, and, when done, will be supported.—Wilson v. Sheppard, 28 Ala. 623.

On each appeal, tbe decree of tbe chancellor is affirmed. J