Freeman v. Pullen

• Decision Date: 15 August 1898
• Citation: 24 So. 57,119 Ala. 235
• Parties: FREEMAN ET AL. v. PULLEN.
• Court: Alabama Supreme Court

24 So. 57

119 Ala. 235

FREEMAN ET AL. v. PULLEN.

Supreme Court of Alabama

August 15, 1898

Appeal from chancery court, Limestone county; William H. Simpson Judge.

Bill by J. D. Pullen against Rachel E. Freeman and others. There was a decree for complainant, and defendants appeal. Affirmed.

The bill was filed in the chancery court of Limestone county on January 11, 1897, by the appellee, as surviving partner of the firm of J. S. Childers & Co., against Rachel E. Freeman the widow of Hiram S. Freeman, deceased, and against W. H Oldacre, administrator of the estate of H. S. Freeman deceased. It was averred in the bill that in 1896 J. S. Childers & Co. sold to the Freeman Lumber Company, "of which said H. S. Freeman was the active and principal partner, goods, wares, and merchandise, consisting of flour meal, etc., and other articles suitable for a commissary department," and that none of the bills for said goods had been paid, and were past due at the time of the filing of the bill. It was further averred that on August 18, 1896 "one W. F. Scarce, by deed, conveyed to said Rachel E. Freeman, on the recited consideration of $225," a certain described tract of land, situated in Limestone county, Ala.; that the consideration of said conveyance was paid by said H. S. Freeman, who was the husband of the said Rachel, "and the title was taken in her name, to hinder, delay, and defraud the grantors of said H. S. Freeman, he and said Freeman Lumber Company being heavily indebted and insolvent." The prayer of the bill was that a receiver be appointed to take charge of the rents of said land and to rent the same, and that on the final hearing the land conveyed to the said Rachel E. Freeman by the said Scarce be subjected to the payment of the demand due the complainant. To this bill the defendants demurred upon many grounds, which may be summarized as follows: (1) The names of the partners composing the firm of J. S. Childers & Co. are not set out in the bill. (2) The surviving partner or partners of the Freeman Lumber Company are not made parties to the bill. (3) That the bill is repugnant, in that it seeks a recovery in favor of complainant, in his individual right, for a debt which is alleged to be due the firm of J. S. Childers & Co. (4) It is not averred that Rachel E. Freeman is insolvent. (5) It is not averred that the assets of the estate of H. S. Freeman are insufficient to pay the alleged claim. (6) It is not averred that the surviving partner or partners of the Freeman Lumber Company are insolvent. (7) It is not averred in the bill that an effort has been made by complainant or J. S. Childers & Co. to collect the claim of the Freeman Lumber Company. (8) It is not averred in the bill that complainant or J. S. Childers & Co. have prosecuted the alleged claim against the Freeman Lumber Company to insolvency, and failed to collect the same. (9) There is no claim brought in the bill against the estate of H. S. Freeman, deceased, or against W. H. Oldacre as administrator of his estate. (10) The charges of fraud, as made in the bill, are insufficient to put the defendants to an answer. (11) It is not averred in the bill that the alleged claim has been presented to the administrator, or filed against the estate of H. S. Freeman. (12) It is not averred in the bill that a judgment has been obtained in favor of the complainant against the surviving partner or partners of the Freeman Lumber Company, and that the execution was issued thereon, and returned "No property found." The complainants also moved to dismiss the bill for want of equity. They also filed the following pleas to the bill: (1) That this suit was brought in less than six months after W. H. Oldacre was appointed administrator of H. S. Freeman, deceased. (2) Letters of administration were granted to the defendant W. H. Oldacre on the estate of H. S. Freeman, deceased, by the probate court of Morgan county, Ala., and suit cannot be maintained against him in any other county than the one in which he was appointed such administrator. (3) W. H. Perkins and M. C. Camody were partners in the firm of the Freeman Lumber Company at the time the debt claimed in this suit was created, and in which judgment has been obtained against them as surviving partners; and no execution has been issued against them for the collection of such claims, and returned "No property found." (4) W. H. Perkins and M. C. Camody, as surviving partners of the Freeman Lumber Company, are necessary parties to this suit. After the filing of the demurrers, the motion, and the pleas, the bill was amended by alleging that one Hilliard Johnson, who resides in Limestone county, claimed some interest in the tract of land described in the bill, the precise nature and character of which was to the complainant unknown; that such interest was unknown to the complainant at the time of the filing of the bill; and said Johnson was made a party defendant. Subsequent to the amendment of the bill, one Hilliard Tate filed a bill, in which he averred that a summons to Hilliard Johnson had been served upon him in this cause; and he then alleged that his name was not Hilliard Johnson, but Hilliard Tate, and that he was known and called by the name of Hilliard Tate, and further alleged facts tending to show that his name was Hilliard Tate. The complainant demurred to the several pleas of the defendants as follows: To the first plea, on the ground that it is not a suit seeking a personal judgment or decree against the personal representative of H. S. Freeman, or seeking to bind or affect assets of the decedent's estate. To the second plea, that the complainant seeks to subject, to the payment of his debts, lands, and the bill cannot be filed in any other county than in the one in which...