Bragg v. Patterson

• Court: Alabama Supreme Court
• Writing for the Court: CLOPTON, J.
• Citation: Bragg v. Patterson, 85 Ala. 233, 4 So. 716 (Ala. 1888)
• Decision Date: 20 July 1888
• Parties: BRAGG ET AL. v. PATTERSON.

4 So. 716

85 Ala. 233

BRAGG ET AL. v. PATTERSON.

Supreme Court of Alabama

July 20, 1888

Appeal from chancery court, Wilcox county; THOMAS W. COLEMAN Chancellor.

Bill by Thomas H. Patterson against Willis N. Bragg and others, to set aside as fraudulent a deed given by Thomas Bragg to Robert J. Carson and Willis N. Bragg, and to subject the property conveyed to the payment of complainant's claim against the grantor. A demurrer to the bill was overruled and defendants appeal. Code Ala. 1876, § 3418, (section 3157, Code 1886,) is as follows: "Whenever a judgment is obtained by a creditor on a demand to which there are one or more sureties, the sureties may pay such demand, and the plaintiff, when the payment is made, must assign such judgment to the surety or sureties paying the money, who may collect the same, with interest and costs, in the name of the plaintiff, to their use, and may assert, in law or equity any lien or right against the principal debtor which the plaintiff could have asserted if the debt had not been paid."

R. Gaillard and S. J. Cumming, for appellants.

J. N. Miller and Brutus Howard, for appellee.

CLOPTON J.

The appeal is taken from a decree overruling a demurrer to the bill, which is filed by appellee as a creditor, and seeks to have annulled and set aside as fraudulent a conveyance made in 1887 by Thomas Bragg to Robert J. Carson and Willis N. Bragg, and to condemn the property conveyed to the payment of complainant's demands, which accrued by his payment of several notes on which he was liable as surety for the grantor. Errors are assigned only by the appellant Willis N. Bragg. Complainant bases his claim as creditor on the following allegations: In April, 1885, Thomas Bragg borrowed from J. N. Miller, as guardian, $400, for which he gave his note, with complainant as surety. In February, 1885, complainant and Thomas Bragg gave their two joint notes, each for over $500,-one to Miller as guardian, and the other to John C. Pritchett,-for money borrowed of them respectively. One-half of the money, for the loan of which the last two notes were given, was borrowed for and used by each of the makers. Complainant paid his share of these notes without suit. In July, 1887, Pritchett recovered a judgment for the balance due on his note; and in November, 1887, Miller recovered a judgment for the full amount of the note for $400, and for the balance due on the other note. The judgments were rendered against both the makers of the notes, and, with the costs of suit, were paid by complainant, to whom they were assigned by the plaintiffs under section 3418, Code 1876.

It is assigned as cause of demurrer to the parts of the bill which claim contribution from Bragg, for the relief of complainant on account of his payment of the two notes for the money jointly borrowed, that complainant was not surety for Bragg, but both were principals. In Owen v. McGehee, 61 Ala. 440, the parties desiring to purchase parts of a tract of land of unequal quantities, and not otherwise differing in value, entered into an agreement by which the entire tract was purchased in the name of one of them. All joined in the note for the purchase money, and each took possession of the part allotted to...