Kahn v. Peter

• Decision Date: 09 November 1894
• Parties: KAHN v. PETER.
• Court: Alabama Supreme Court

16 So. 524

104 Ala. 523

KAHN v. PETER.

Supreme Court of Alabama

November 9, 1894

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Bill by Bernard Kahn against Charles F. G. Peter, administrator of the estates of George F. Werborn and Charles Werborn, to set aside a bill of sale. Judgment for defendant, and complainant appeals. Affirmed.

The plaintiff filed the bill as a creditor of said George F Werborn, as shown by the following facts, which are gathered from the averments of the bill: On November 5, 1878, Adolph Proskauer, as principal, with Bernard Kahn and Charles Werborn, as sureties, executed and delivered to the probate judge of Madison county, Ala., a bond in the penal sum of $22,000, payable to said judge, conditioned to be void if said Proskauer should well and truly perform all the duties which the law required of him as the guardian of Emma Matilda Heinman, a minor, or else to remain of full force and effect. This bond was approved by said judge on November 20, 1878 and letters of guardianship upon said minor's estate were thereupon issued to said Proskauer, and he took possession of the property of said ward, and entered upon the discharge of his duties as guardian. On December 27, 1886, the said Proskauer ceased to be the guardian of said minor, and was succeeded in such office by John H. Sheffey, and, upon final settlement on that day of Proskauer's guardianship in the probate court, there was a decree rendered against the said Proskauer, in favor of the newly-appointed guardian, for the sum of $16,066.79. Execution issued upon this decree, and was returned, "No property found." Thereupon executions were issued against the sureties on the bond of guardianship of said Proskauer, and placed in the hands of the sheriff of Mobile county, where they both resided, and were returned "No property found." All of these proceedings were had prior to May 22, 1889, and before the last-named date the said Sheffey had ceased to be the guardian of said minor whose person and estate had been removed to Phillips county, Ark., and one Lycurgus Lucy had been duly appointed guardian of said minor by the probate court of said Phillips county. On May 22, 1889, the complainant compromised the decree rendered against Proskauer and his sureties, in favor of the estate of the minor, for $4,900, which sum he paid to said Lucy as guardian, and received from him a full discharge of said Proskauer, and of himself and George F. Werborn, as sureties on said guardianship bond. This settlement was made under the authority conferred upon Lucy by the probate court of Phillips county, Ark., and said court thereafter fully confirmed said settlement. In effecting this compromise, as alleged in the bill of complaint, the complainant was compelled to employ legal counsel, and paid to him, as reasonable fees, the sum of $607.75. It was also alleged in said bill that the complainant compromised another claim in favor of the minor's estate against the said Proskauer of $1,356.33, which had been reduced to judgment by the payment of $1,056.33. The complainant averred in his bill that the said George F. Werborn was equally benefited with himself by the payment of the said sum of $4,900 to said Lucy, and of $607.75 to the attorney effecting such compromise, and of $1,056.33 paid by him in compromise of the other claim against said Proskauer, and that by the payment of these several claims the said George F. Werborn became and was justly indebted to the complainant in one-half of the amount of each of said payments; that no part of said indebtedness had ever been paid to him by said Werborn; and that the whole now remains unpaid and justly due to him from the estate of George F. Werborn. It was then averred in the bill that the said George F. Werborn, who was then engaged in business in the city of Mobile, owned a valuable stock of merchandise, amounting to not less than $25,000, and had large collectible debts outstanding, did on October 26, 1886, execute a bill of sale to his brother Charles Werborn, conveying all of his property, upon the consideration of the satisfaction of an alleged indebtedness of $13,323.33, due from said George F. Werborn to Charles Werborn, and the undertaking by the latter to pay sundry other debts due from said George F. Werborn and other creditors, aggregating about $13,338.20. It was then alleged that this sale was fraudulent and void; that the alleged debt from George F. Werborn to Charles Werborn was simulated; and that this sale was fraudulent as to the complainant, in hindering and delaying him in the collection of his claims against the said George F. Werborn. Prior to the filing of the bill both George F. Werborn and Charles Werborn had died, and the respondent, Charles F. G. Peter, was appointed the administrator of their respective estates. The prayer of the bill was that the bill of sale, which was attacked as fraudulent, should be set aside and annulled, and so much of the property conveyed thereby as was necessary be subjected to the payment of the claims of the complainant. The respondent answered the bill, and averred, among other things, that the bill of sale was made with the advice and assent of the plaintiff; that a debt due him from George F. Werborn, amounting to $1,000, was among the debts of said George F. Werborn, which Charles Werborn agreed to pay as a part of the consideration of said sale; and that the said Charles Werborn had paid to the complainant the $1,000 due him from George F. Werborn.

Clarkes & Webb and Pillans, Torrey & Hanaw, for appellant.

Fredk. G. Bromberg, for appellee,

McCLELLAN J.

That the complainant, Bernard Kahn, who now attacks for fraud a bill of sale executed by George F. to Charles Werborn, on October 26, 1886, was fully advised of that transaction immediately after it transpired, is not denied. That a part of the consideration for the sale was the assumption by Charles Werborn of an indebtedness of $1,000 from George Werborn to the complainant, that Kahn immediately came to the knowledge of this fact, looked to Charles for payment, and soon thereafter received payment in full of his debt against George from Charles Werborn, is admitted. Whether the complainant knew of...