Jones v. Peebles
Decision Date | 05 June 1901 |
Parties | JONES ET AL. v. PEEBLES ET AL. [1] |
Court | Alabama Supreme Court |
Appeal from chancery court, Pickens county; Thomas H. Smith Chancellor.
Bill by Lowenstein Bros. & Co. against Mamie E. Peebles and others. From the decree, Winston Jones & Co. appeal. Reversed.
The decree appealed from was a final decree of the chancellor, in which it was decreed that the deed of E. B. Peebles to his wife, Mamie E. Peebles, was fraudulent and void, and should be set aside and canceled, and that the property conveyed therein should be subjected to the payment of the debts of the complainants, but denied to Winston Jones & Co. (who were, after the filing of the bill, made parties complainant on their petition) the right to share in the proceeds of the sale of the property, upon the ground that they were estopped by previous conduct on their part from questioning the validity of the deed.
A. C Bogle and Pettus & Pettus, for appellants.
Willett & Willett and R. H. & N. R. Clarke, for appellees.
The bill in this cause was exhibited by Lowenstein Bros., M. L Stansel, and Pollock & Bernheimer to have declared fraudulent and void a deed executed by their debtor, E. B. Peebles conveying a certain tract of land to his wife, Mamie E. Peebles. Before answer, on petition, Winston Jones & Co., these appellants, were made parties complainant. On final hearing, the chancellor granted relief to all the complainants except Jones & Co. He refused them relief solely on the ground that they had estopped themselves by the recitals contained in a certain contract into which they had entered with the administrator and administratrix of the estate of E. B. Peebles, deceased, to which contract Mamie E., as administratrix, was a party. It is not insisted that the deed was not fraudulent as to creditors of E. B. Peebles, or that the chancellor was in error in so finding and decreeing. And if fraudulent as to Lowenstein Bros., Stansel, and Pollock & Bernheimer, it was also fraudulent as to Jones & Co., who were existing creditors at the date of its alleged execution. It is of no consequence that the debt of Jones & Co. was secured by a mortgage upon property other than that conveyed by the deed assailed. This fact cannot affect their rights, as creditors, to attack the deed on account of its fraudulent character, and to have it so declared, if they are not debarred from doing so on account of the other two matters of defense attempted to be invoked.
The only defense invoked by the answer, other than the bona fides of the deed assailed, is the statute of nonclaim. It cannot be doubted that mere knowledge on the part of the administrator of the existence of the claim will not dispense with the necessity of presentation, however full and complete that knowledge may be. To satisfy the mandate of the statute, "it is indispensable not only that the claim should be brought to the attention and knowledge of the executor or administrator, but this must be done by one having an interest in it, and a legal right to enforce its payment, and it must be evinced by some act or word which indicates an intention to look to the estate of the deceased debtor for its payment." Allen v. Elliott, 67 Ala. 432, and cases cited. Or, to restate the principle in the language employed by Stone, J., in Smith v. Fellows, 58 Ala. 472: "The result of our rulings on this question is that, to constitute a sufficient presentation, the nature and amount of the claim must be brought to the attention of the personal representative by some one authorized in law or fact to make the presentation, and the representative must be notified, expressly or impliedly, that the estate is looked to for payment." Applying these principles to the facts of this case, it is difficult to perceive how a more definite, certain, and sufficient presentation could have been made. Here within a few days after their appointment the administrators entered into a written contract with Jones & Co., which was signed by all of them, in which the claim of Jones & Co. against their intestate is described as several promissory notes secured by a mortgage executed by him on the 10th of July, 1895, and recorded in the office of the probate judge, evidencing a debt of $27,125.29, and containing an obligation on the part of the administrators to devote the rents and profits arising from the lands belonging to the estate of the intestate to its payment,-a definite recognition by the administrators of the existence of the claim as a valid, subsisting liability against the estate of their intestate, coupled with an implied, if not an express, promise to pay it, and an unequivocal act on part of Jones & Co., the owners of the claim, indicating their intention to look to the estate of their deceased debtor for its payment.
This brings us to a consideration of the point upon which the chancellor denied to them relief. As we have said, he held that Jones & Co. were estopped by the contract, and by their conduct in attempting an assertion of their rights under it. In short, the respondent Mamie E. Peebles relies upon an estoppel by deed and in pais as a defense. And this defense is relied upon and attempted to be invoked notwithstanding the answer contains no intimation of it. So, then, the question is fairly and squarely presented whether she can have the benefit of such defense without invoking it in her pleadings,-assuming, without conceding, that it is supported by the evidence. We have been unable, after diligent search to find any case of this court where this question has been pointedly raised or decided. In criminal cases it has long been the practice that a former acquittal or conviction, which, of course is an estoppel by record, is required to be specially pleaded, and that evidence of a former acquittal is not admissible under the plea of not guilty. And the failure to plead former jeopardy operates a waiver of it as a defense. Rickles v. State, 68 Ala. 538; De Arman v. Same, 77 Ala. 10; Baysinger v. Same, Id. 60; Jordan v. Same, 81 Ala. 20, 1 So. 577. And we do not see how it can be held otherwise in cases at law, whether the defense relied upon be an estoppel by record, by deed, or in pais, in view of the plain mandate of the statute, "if he [defendant] does not rely solely on a denial of the plaintiff's cause of action, must plead specially the matter of defense." Code, § 3295. It cannot be seriously doubted that matters of estoppel by record, deed, and in pais are the subjects of pleas in bar. They...
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