Cartwright v. West

• Decision Date: 07 April 1908
• Citation: 155 Ala. 619,47 So. 93
• Parties: CARTWRIGHT ET AL. v. WEST.
• Court: Alabama Supreme Court

47 So. 93

155 Ala. 619

CARTWRIGHT ET AL. v. WEST.

Supreme Court of Alabama

April 7, 1908

Rehearing Denied June 18, 1908.

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Suit by Marvin West, trustee in bankruptcy, against Anna M Cartwright and others. From a decree for plaintiff defendants appeal. Reversed and remanded.

Brown & Kyle, for appellants.

Callahan & Harris, for appellee.

TYSON C.J.

The action of the chancellor in overruling the plea in abatement can be sustained upon the ground, irrespective of all others, that by demurring to the bill the plea was waived. Town of New Decatur v. Scharfenberg, 147 Ala. 367, 41 So. 1025; Grant v. Ph nix Ins. Co., 121 U.S. 105, 7 S.Ct. 841, 30 L.Ed. 905; 1 Ency. Pl. & Pr. 36; 1 Cyc. 131. But, aside from this, the only insistence laid in argument in support of its sufficiency is predicated upon the averment "that the complainant had never been given authority by the United States court to bring the suit." No case has been cited holding that it is incumbent upon a trustee in bankruptcy to first obtain leave of the court appointing him before instituting suits of this character, and therefore the averment of "leave of court obtained" to be necessary. To the contrary, the point has been expressly decided otherwise (and we think correctly) by the Supreme Court of Mississippi in the case of Chism, Trustee, v. Citizens' Bank, 77 Miss. 599, 27 So. 637. See, also, 22 Cyc. p. 1307. This also disposes of the second, eighth, and ninth assignments of the demurrer to the bill adversely to the appellants.

By the bill the trustee in bankruptcy seeks to have declared void and annulled certain alleged gifts, made by the bankrupt, of real and personal property to these appellants, and to subject that property to the payment of the debts of certain named simple contract creditors. According to the averments of the bill, these several gifts were made, respectively January 3, 1903, March 26, 1903, March 31, 1905, and the remaining one between the dates of the bankrupt's marriage, in January, 1903, and of the filing of the petition for the adjudication as a bankrupt, in April, 1906. It is nowhere averred that these gifts were made with a covinous intent; and as to existing creditors of the bankrupt at the time the gifts were made no such averment is necessary to subject the property to the satisfaction of their debts, but as to subsequent creditors the allegation of a fraudulent intent is necessary. McGhee v. I. & T. Nat. Bank, 93 Ala. 192, 9 So. 734; Allen v. Caldwell, Ward & Co. (Ala.) 42 So. 858, and cases there cited. And the fact that the bill is exhibited by a trustee in bankruptcy does not relieve him of making the necessary averments that obtain with respect to such a bill if exhibited by the creditors themselves. He is simply the representative of the creditors severally, and is attempting to enforce their rights severally, and not his own. They are the beneficiaries of the results obtained by him in the proceedings; and the alleged fraudulent grantees have the same right to be apprised of the facts upon which he relies for a recovery as they would have had, had the bill been filed by the creditors. In...