Buckingham v. Walker , 51 Miss. 491 ( 1875 )

Tarbell, J.,

delivered the opinion of the court.

This case is submitted upon demurrer to bill filed to set aside conveyances to real estate, made by the executrix of S. H. Buckingham, deceased, in fraud of creditors. Samuel P. Walker, administrator of Hyatt Moye, deceased, recovered a judgment in the Monroe county circuit court, against Mary J. Buckingham, executrix, etc. John A. Walker recovered a judgment in the same court against the same party. • John A. Walker assigned his judgment to J. T. Jamison, Lucien M. Sykes and Thomas Cobb. John A. Walker died, and Thomas Cobb became his administrator, with the will annexed. Executions issued on both these judgments, and were returned nulla bona.

Samuel P. Walker, administrator of Moye, and Thomas Cobb, administrator of John A. Walker, with J. T. Jamison, Lucien M. Sykes and Thomas Cobb, assignees of the latter judgment, are complainants. Mary J. Buckingham, executrix, S. H. Buckingham and Virginia E. Buckingham, heirs of S. H. Buckingham, deceased, and S. H. Buckingham, defendants. The demurrer was overruled, with leave to answer. From that decree the respondents appealed. Such action of the court being the only grounds of error assigned.

1. The first cause of demurrer to the bill is, that the children and heirs of John A. Walker are necessary parties. Upon the facts, it is not perceived that these parties have any interest whatever in this litigation, the judgment in his favor having been assigned in the lifetime of their father.

2. That no valid assignment of the judgment to Jamison, Sykes and Cobb, is set out. This is matter of proof on the hearing; the allegation is sufficient.

8. Misjoinder of complainants. The complainants are creditors by several judgments, and may join as in this case. Butler v. Spann, 27 Miss., 284; Snodgrass v. Andrews, 30 id., 472. The 4th, 5th, 6th, 7th and 8th causes of demurrer are based upon the assumption that the bill charges a devastavit of the personal property of the estate involved, in which counsel is mistaken. The bill carefully avoids the questions thus raised, by stating the personal assets to have been exhausted by the executrix in pursuance of and under the powers conferred by the will, except as to the slaves which were emancipated as a result of the war.

10. The tenth cause complains that it is not shown that the assets belonging to the estate were not exhausted through any default or neglect of creditors. • Nothing appears on tbe face of tbe bill upon which to base an assertion that the creditors are in fault for the noncollection of their debts, or that they are responsible for the disposition of the personal estate. Upon the facts presented, it would be unprecedented to require the creditor to deny laches. No case is yet made calling for such denial.

9, 11. The ninth and eleventh causes are general, of a want of equity in the bill. At present the bill appears to be carefully and fully drawn, for the purpose set forth. If there has been a devastavit, or if personal assets have been lost by such neglect of creditors as to render them responsible, these and many other legitimate defenses can be interposed in the proper mode.

This case is distinguishable from several cited by counsel, such as Yerger v. Foote, 48 Miss., 62; Baskins v. Hargrove, MSS. Op.; Ferguson v. Scott, 49 Miss., 500; Paine v. Pendleton, 32 Miss., 320; Turner v. Ellis, 24 id., 173; Evans v. Fisher, 40 id., 643; Hollman v. Bennett, 44 id., 322; Foley v. McDonald, 46 id., 238; and so clearly so as not to require criticism.

Affirmed, with leave to answer in forty days from this date.