McClarin v. Anderson , 109 Ala. 571 ( 1895 )

HEAD, J.

1. The personal representative of the deceased fraudulent grantor had no interest whatever in the property fraudulently conveyed (Davis v. Swanson, Admr., 54 Ala. 277); and it is now the rule of decision in this court that he is not a necessary party in cases of this kind (Staton, et. al. v. Rising, 103 Ala. 454); and the reasoning of the following cases leads to the same results: Coffee Admr. v. Norwood, 81 Ala. 517; Handley v. Heflin, 84 Ala. 600.

2. Unaffected by statute, the rule was and is that a creditor seeking to subject equitable assets must aver and prove that he has exhausted his legal remedies, or that there is a deficiency of legal assets. The statute, however, which authorizes a simple contract creditor to subject property fraudulently conveyed, or attempted to be fraudulently conveyed by the debtor,changes the rule, in cases of that kind, and authorizes the creditor to proceed without regard to the existence of other legal assets. Hence,the issue as to the ownership of the debtor of other property is immaterial. If the conveyance assailed in this case could be said, under the facts, to have been merely voluntary, and not actually fraudulent, they were, nevertheless, in construction of law, dispositions in fraud of the rights of existing creditors. It would require, however, a struggle with the conscience to say that a conveyance, made, by a judgment debtor,of property subject to the judgment, and of the value of this property, to a stranger, upon a simulated consideration of $900, when the real consideration was that the donee would convey it to the debtor’s wife upon a simulated consideration, was not infected with an actually fraudulent intent.

3. There was-,in the judgment rendered by this court, setting aside the sale under execution (81 Ala. 106) no element of an adjudication that all the property sold, or any of it, for that matter, belonged to the debtor’s actual homestead. It adjudicated nothing but the irregularity and voidable character of the sale, arising from the fact that it occurred after the claim of homestead had been regularly interposed, and not contested. Whether or not the land, or any part thereof, really constituted an exempt homestead, was a question to be tried upon the contest of the claim. It appears that this court, probably through inadvertance, set aside the entire sale made by the sheriff, at the same time, under the same process, for the reason above stated, when, in fact, as shown by the record, there were separate sales of parts of the land, which were not included in the claim of homestead exemption. We say the court probably acted upon the misapprehension that all the property sold had been claimed as exempt, but, however that may be, there was clearly no adjudication that any of the land constituted a homestead.

On the former appeal in this case (104 Ala. 201), we held that the subsequent action of the City Court sustaining the demurrer (or that which was called a demurrer) to the plaintiff’s contest of the debtor’s claim of homestead, was an adjudication of the validity of that claim, and the chancellor, following that decision, condemned only that part of the land not embraced therein.

There was manifestly no error in the chancellor’s decree, and it is

Affirmed.