Evans v. Silvey & Co. , 144 Ala. 398 ( 1905 )

ANDERSON, J.

The defense made to this bill presents but two questions. First, whether or not there was a valid judgment to support the lien? Second, if there was, did the lien abate upon the death of the defendant or upon his estate being declared insolvent?

The judgment was a valid one in favor of the surviving partners of the late firm of Silvey & Company, as the estate of the deceased member could be no party plaintiff. Upon the death of one partner, the legal title to the assets and the lights to sne for partnership debts are vested in the surviving partners. — Costly v. Wilkinson, 49 Ala. 210. And the averment that the firm was composed of the estate of John Silvey, deceased, simply described the capacity in which the other parties sued, as the estate of a deceased member could not sue.

The recording of the judgment as provided by the statute, sections 1920 to 1923 inclusive, of Code of 1896, as amended by Act 1898-99, 34, gave the complainant a lien on the property of the defendant in the judgment for a period of ten years, and which did not abate upon the death of the defendant. — Enslen v. Wheeler, 98 Ala. 200. As was held by this Court in said case, the lien survived the defendant. We see no reason for not holding in this case that it survives the declaration of insolvency of his estate, in so much that ten years had not elapsed from the time of recording the judgment. This statute was not only intended to relieve the owner of judgments from tbe constant and regular resort to a fieri facias in order to keep the lien alive, but made it one for ten years.

The contention of respondent that the lien abated upon the death of defendant, if no execution was in the hands of the sheriff, or upon a declaration of insolvency, is •based upon the principle laid down in a line of cases from Hart v. Nave, 49 Ala. 459, running back for years, and which have no application to the question involved in this case. For while the statute may be the same now that it Avas then, Avith reference to insolvent estates, Ave then had no such statutes as uoav exists creating a lien for ten years.

The complainants, having a valid lien but no remedy for the enforcement thereof in a court of laAV, the court of equity, by virtue of its general jurisdiction over liens and trusts, will take jurisdiction and enforce the lien. Enslen v. Wheeler, supra; Montandon v. Deas, 14 Ala. 240; Westmoreland v. Foster, 60 Ala. 448; Bingham v. Vandergrift, 93 Ala. 283.

My brothers do not agree with me upon the proposition that the lien survives the declaration of insolvency, and think that the chancellor erred in holding the plea insufficient. The decree of the chancellor is reversed and, as the insolvencv is shown by the record, a decree is here rendered holding the plea sufficient and dismissing the bill.

Reversed and rendered.

McClellan, C. J., Tyson, Dowdell, Simpson and Denson, JJ., concurring. Anderson, J., dissenting.