20 Ala. 662 (Ala. 1852), Pharis v. Leachman

Citation20 Ala. 662
Opinion JudgeGOLDTHWAITE, J.
Party NamePHARIS ET AL. v. LEACHMAN, ADM'R. ET AL.
AttorneyJ. B. CLARKE and R. H. SMITH, for plaintiff in error: JOHN A. CAMPBELL and S. F. HALE, contra:
CourtSupreme Court of Alabama

Page 662

20 Ala. 662 (Ala. 1852)

PHARIS ET AL.

v.

LEACHMAN, ADM'R. ET AL.

Supreme Court of Alabama

June Term, 1852

ERROR to the Chancery Court of Greene.

Tried before the Hon. W. W. Mason.

This bill was filed by a creditor of Charles L. Roberts, on behalf of himself and the other creditors of said Roberts, to subject to the payment of his debts certain real and personal property which, it is alleged, was purchased by said Roberts in his lifetime, and the real estate improved, with the individual funds of said Roberts, and the titles taken in the name of a trustee for the use and benefit of his wife and children, who were the cestuis que trust of a trust estate created by the will of Woodliff Bevell, the father of Mrs. Roberts. The bill also makes a demand upon a family of slaves, which, it is alleged, were the property of said Roberts by gift to his wife from said Woodliff Bevell, and which are also alleged to have been fraudulently included in the trust estate.

The complainant's demand is based upon two judgments, which he obtained against Roberts in his lifetime, and on which executions had been issued, and returned "no property found," but the executions were not renewed at any time within two years before the death of Roberts. It does not appear that any other proceedings were instituted, by way of having the claims allowed against the estate. The bill charges that the claims were presented to the administrator, within eighteen months after the grant of letters, and that the estate has been reported insolvent by the administrator.

As connected with his demands, the complainant charges that Roberts sold him two slaves, at a stipulated price, which were to go in part payment of the judgments; and upon the further agreement, that if Roberts had not a good title to the slaves, and they were lost to the complainant, then the amount stipulated to be paid for them was not to be credited on the judgments, but in such case, the hire of the slaves during the time complainant had them was to be allowed as a credit on the judgments; that a suit was instituted against the complainant, for the conversion of the slaves, by the trustee of Mrs. Roberts, and damages were recovered to the amount of their value, and also interest on their estimated value from the day of sale. The bill prays that, in taking an account of what is due upon the judgments, a credit for the hire of the slaves should not be allowed.

The complainant also seeks to avoid a credit on his judgments for a claim on one Wm. M. Inge, which was received by complainant's attorneys from Roberts, and a receipt therefor given, expressing on its face that the amount was to be credited on the judgments. This credit it is insisted should not be allowed, on the ground that said claim was not, as expressed in the receipt, to be taken as an absolute payment, but was only to be credited on the judgments in the event of its collection, and that, on account of the insolvency of Inge, nothing could have been, nor has been, collected on it.

The administrator of Roberts, as such, the trustees and cestuis que trust, are made defendants to the bill. The answers of Leachman and Mrs. Roberts admit the complainant's claim, and also the purchases, which are set out in the bill; but they deny that the purchases were made with the individual means of Roberts, and insist that the purchases, as well as the improvements of the real estate, were made with the trust funds, or with money raised upon the faith of the trust funds, and for the benefit of the trust estate. The alleged gift of the slaves by Woodliff Bevell is also denied, and the charges of fraud. The credits, already referred to, are insisted on, and the statute of non-claim is set up, by way of plea, to the complainant's demands.

It is unnecessary here to state the evidence, as upon the facts in controversy it is set out in the opinion of the court. The case was submitted to the chancellor upon the bill, answers, evidence, &c. and a decree was rendered dismissing the bill, upon the ground that the evidence did not establish a presentation of the complainant's demand to the administrator within eighteen months after the grant of letters; and from this decree the complainant prosecutes a writ of error.

J. B. CLARKE and R. H. SMITH, for plaintiff in error:

I. As to the jurisdiction of the Court of Chancery. In the exercise of its original powers, which remain unimpaired by statutory inhibition, the Courts of Chancery have jurisdiction over estates, in the direction and control of executors and administrators, and in protecting the rights of creditors, as well as decreeing distribution of the assets. In all cases, where trusts are to be executed, or a discovery of assets is wanted, the powers of the Orphans' Court being inadequate to afford the necessary relief, chancery will take jurisdiction; and courts of equity will not enumerate the cases, in which upon a suggestion of fraud, they will take jurisdiction. Executors and administrators are almost in every respect considered in equity as trustees. Dement v. Boggess, 13 Ala. 143; Horton v. Moseley, 17 ib. 796; Blakey v. Blakey, 9 ib. 394; Leavens v. Butler, 8 Porter, 396; Kennedy v. Kennedy, 2 Ala. 572.

The objection that the complainant is not a creditor with a lien, cannot prevail in a case like this, if at all. A creditor with a lien may come into chancery, to remove a cloud on the title, and thus reap the full effect of his lien. A creditor who has reduced his demand to judgment, and had execution returned "no property found," may come into chancery to subject equitable assets. He comes in, not because he has a lien, but because he has, by a return of process, shown that there is nothing on which he can get a lien, and because there are equitable assets, which may be subjected. His lien, in such case, does not relate to his legal process, but begins from the filing of his bill, and the creditor who first files his bill, has the first lien. Legal process is no lien upon equitable assets. Beck v. Burdett, 1 Paige, 309; Edmondson v. Lyde, ib. 639; 2 Blackf. 356.

The doctrine of a creditor's right to file his bill, to obtain satisfaction of his debt, fruitlessly prosecuted at law, has no application to a party standing in the light of a beneficiary seeking to hold a trustee to account. The former invokes an extraordinary power of the court; the latter, the ordinary, original, inherent power. The doctrine, if applicable to this case, would prove too much; it would show that this property is entirely beyond the reach of creditors. Thus: The administrator cannot touch it, as administrator, being bound by the fraud of his intestate; it cannot be reached by scire facias against the heirs, for the heirs do not take it as heirs, but as fraudulent purchasers; without it, the estate is insolvent, and the creditor can only get a decree for his distributive share of the assets, without any lien, or any process to reach this property.

II. We insist, that the trust property is held by Leachman, under a fraudulent investment by Roberts, not as administrator, but as executor de son tort. The bill does not call him executor de son tort, but it sets out all the facts necessary to show his liability to account as such, and this is sufficient. There is no form absolutely necessary to a bill in chancery. That the creditors may subject the property, and that the proper remedy is, to hold the fraudulent grantee liable as executor de son tort, see Osborne v. Moss, 7 Johns. 161; Roden v. Murphy, 10 Ala. 804; Densler v. Edwards, 5 ib. 31.

The attempt to charge Roberts with hire for the negroes cannot be allowed; in serving the family of Roberts as domestics they were employed strictly in accordance with Mr. Bevell's will.

As to the two slaves sent to Roberts by Mr. Bevell, and remaining in possession, the evidence of Thomas L. Bevell proves them to have been given to Charles Roberts; but even if loaned, Roberts retained them more than three years, and they became liable to his debts under the statute of frauds.

It will avail nothing that no conveyance proceeds from Roberts; it is the same thing that he procures it made, he paying the consideration. It is a fraudulent gift by him to his wife and children, void as to creditors.

It has been said, if this property be subjected, the trust fund should first be raised from it; but it was bought and paid for before the trust fund accrued; again, $2320.87 of this has never been expended, which deducted from $3054, (the whole fund) leaves only $733.13 of it ever expended in any manner by Roberts. But the reverse of the principle contended for is true, if the trust fund partly paid for the property, to wit: that our money (Roberts' money) will be raised from the property. Hoot v. Sorrell, 11 Ala. 386.

III. As to the statute of non-claim. Defendants Leachman and Mrs. Roberts plead statute of non-claim, and answer in effect that they do not believe or remember that the claims were presented. It is not denied but that the admission by the administrator, made within eighteen months from grant of letters, is good evidence against him of presentation. But it is insisted that such admission made after the eighteen months is inadmissible. By the deposition of Clarke, and by the fact of payments within the eighteen months, the presentation is proven. A payment necessarily comprehends a demand. It is the result, the fruit of a demand, and the judgments may be treated all as one debt, the notes on which they were rendered being parts of the same debt. Admitting, however, that each was a different debt, the payments not being directed in their application, the creditor was left to apply as he pleased, or they will be applied to all equally. It is not to be credited that these payments were made without knowledge or regard as to how, on what, &c., they were to go.

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58 practice notes
  • 125 S.W.2d 820 (Mo. 1939), 35601, Buckley v. Maupin
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1939
    ...decided in 1852 and 1874 and a Maryland case decided in 1833. The decision in the principal Alabama case cited, Pharis v. Leachman (1852), 20 Ala. 662, seems to be based on the facts of the particular case and the then recognized chancery jurisdiction of that state. It was a bill in equity ......
  • 194 S.W.2d 540 (Mo.App. 1946), Sanders v. Brooks
    • United States
    • Court of Appeal of Missouri (US)
    • April 1, 1946
    ...destroyed is the same as if it never existed. Cyc., Vol. 25, Liens, p. 675; Corpus Juris, Volume 37, Liens, page 333; Pharis v. Leachman, 20 Ala. 662; Au Sable River Boom Co. v. Sanborn, 36 Mich. 358; Langsford v. Fenning, 7 S.W.2d 726; In an agister's lien case in replevin the value of the......
  • 77 So. 356 (Ala. 1917), 7 Div. 815, Alabama Power Co. v. Hamilton
    • United States
    • Supreme Court of Alabama
    • November 15, 1917
    ...the actual party in interest ( P. & M. Ins. Co. v. Tunstall, 72 Ala. 142, 148; Thompson v. Drake, 32 Ala. 99, 104; Pharis v. Leachman, 20 Ala. 662, 679; Bowen v. Snell, 11 Ala. 379; Cunningham v. Carpenter, 10 Ala. 109, 112; Head v. Shaver, 9 Ala. 791, 793; Brown v. Foster, 4 Ala. 282; ......
  • 167 So. 703 (Ala. 1936), 6 Div. 818,838,841, First Nat. Bank v. Love
    • United States
    • Supreme Court of Alabama
    • March 12, 1936
    ...were really not in dispute. Making partial payments on the demand is evidence of presentation. Pharis et al. v. Leachman, Adm'r et al., 20 Ala. 662. More so now, since the statute forbids such payments. Code, § 5815. The payments made on demand after the 12-month period were unlawfully paid......
  • Request a trial to view additional results
55 cases
  • 125 S.W.2d 820 (Mo. 1939), 35601, Buckley v. Maupin
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1939
    ...decided in 1852 and 1874 and a Maryland case decided in 1833. The decision in the principal Alabama case cited, Pharis v. Leachman (1852), 20 Ala. 662, seems to be based on the facts of the particular case and the then recognized chancery jurisdiction of that state. It was a bill in equity ......
  • 194 S.W.2d 540 (Mo.App. 1946), Sanders v. Brooks
    • United States
    • Court of Appeal of Missouri (US)
    • April 1, 1946
    ...destroyed is the same as if it never existed. Cyc., Vol. 25, Liens, p. 675; Corpus Juris, Volume 37, Liens, page 333; Pharis v. Leachman, 20 Ala. 662; Au Sable River Boom Co. v. Sanborn, 36 Mich. 358; Langsford v. Fenning, 7 S.W.2d 726; In an agister's lien case in replevin the value of the......
  • 77 So. 356 (Ala. 1917), 7 Div. 815, Alabama Power Co. v. Hamilton
    • United States
    • Supreme Court of Alabama
    • November 15, 1917
    ...the actual party in interest ( P. & M. Ins. Co. v. Tunstall, 72 Ala. 142, 148; Thompson v. Drake, 32 Ala. 99, 104; Pharis v. Leachman, 20 Ala. 662, 679; Bowen v. Snell, 11 Ala. 379; Cunningham v. Carpenter, 10 Ala. 109, 112; Head v. Shaver, 9 Ala. 791, 793; Brown v. Foster, 4 Ala. 282; ......
  • 167 So. 703 (Ala. 1936), 6 Div. 818,838,841, First Nat. Bank v. Love
    • United States
    • Supreme Court of Alabama
    • March 12, 1936
    ...were really not in dispute. Making partial payments on the demand is evidence of presentation. Pharis et al. v. Leachman, Adm'r et al., 20 Ala. 662. More so now, since the statute forbids such payments. Code, § 5815. The payments made on demand after the 12-month period were unlawfully paid......
  • Request a trial to view additional results

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