Freider v. Leinkauff

• Decision Date: 26 January 1891
• Citation: 8 So. 758,92 Ala. 469
• Parties: FREIDER ET AL. v. LEINKAUFF ET AL.
• Court: Alabama Supreme Court

8 So. 758

92 Ala. 469

FREIDER ET AL. v. LEINKAUFF ET AL.

Supreme Court of Alabama

January 26, 1891

Appeal from chancery court, Tuscaloosa county; THOMAS COBBS, Judge.

W C. Fitts, for appellants.

Foster & Jones and Carl Gantzhorn, for appellees.

MCCLELLAN J.

The present bill is filed under section 3544 of the Code, and seeks to subject to complainants' demands certain lands alleged to have been fraudulently conveyed by the debtor William Freider, to Louisa Sander. The facts as to the debt sought to be collected are that Freider, on February 2, 1889 purchased certain property from one Black, and in payment thereof executed two promissory notes,-one for $170, due and payable 12 months after date, that is, on February 2, 1890; and the other for $600, due and payable 24 months after date, that is, on February 2, 1891. These notes were transferred by Black to complainants, for value, and without recourse, on October 4, 1889. The bill was filed, it appears, on July 29, 1890, after the maturity of the first, and before the maturity of the second, note, alleges fraud in the conveyance to Louisa Sander, the existence at the time thereof of the debts evidenced by these notes, prays that an account be taken to ascertain the amount of the debt due "complainants upon the two promissory notes aforesaid," that the deed from Freider to Sander be set aside, etc., and the land attempted to be conveyed thereby be decreed to be sold for the payment of said debt.

We infer from the argument of counsel that the chancellor held the allegations of the bill that on February 2, 1890 complainants "offered to discount their said second note of $600 on the most liberal terms, which the said Freider accepted," to be insufficient to show that the date of maturity of that note had been changed to the time of said proposition; and we quite agree with him. This averment is entirely too vague to show any contract fixing another time for the payment of the note. The statement involves nothing looking to such purpose, and nothing definite upon which the minds of the parties could have met for any purpose. Adams v. Adams, 26 Ala. 272. Moreover, the acceptance of a proposition to discount a note involves its payment. This note was not paid. Hence it is that the averments on this point may be said to be self-contradictory. It appears, therefore, that the bill seeks a decree and order of sale, not only for the $170, which was due, but also for the $600 note, which was not due when the bill was filed, and is not yet due. It is the settled construction of the statute under which the bill proceeds that it does not exempt such suit from the general rule, which prevails in equity, as well as at law, that no suit can be maintained before a cause of action has accrued, and does not confer on a creditor the right to bring a bill to subject property to the payment of his debt before its maturity, and before he is authorized to maintain an action at law on the demand. Jones v. Massey, 79 Ala. 370; Bragg v. Patterson, 85 Ala. 233, 4 South. Rep. 716. The demurrer presents the question whether a complainant may proceed under this section for a debt which is not due, by joining his demand in that regard cumulatively with another debt, which has matured. Confessedly no suit, at law or in equity, could be maintained upon the debt which has not matured, considered without reference to the past-due obligation. Confessedly, also, the mere fact, in the absence of stipulations to that effect, that a party has a matured claim, upon which he may sue, does not authorize him to proceed upon another claim, which is not due, and as to which, therefore, the debtor is not in default. And it is not conceivable that the bare election of such party to join the two in one action can confer a previously non-existing right to sue at all, or under any circumstances, save by attachment in exceptional cases, upon the debt which the other party is under no obligation to pay at the time at which the action seeks to coerce payment. ...