McCarty v. Robinson

• Decision Date: 20 November 1930
• Docket Number: 8 Div. 164.
• Parties: MCCARTY v. ROBINSON ET AL.
• Court: Alabama Supreme Court

131 So. 895

222 Ala. 287

MCCARTY v. ROBINSON ET AL.

8 Div. 164.

Supreme Court of Alabama

November 20, 1930

Rehearing Denied Jan. 29, 1931.

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Creditor's bill by W. D. McCarty against John L. Robinson and others. From a decree dismissing the bill as to certain respondents complainant appeals.

Affirmed.

See also (Ala. Sup.) 130 So. 680.

E. W Godbey, of Decatur, for appellant.

C. H Eyster and A. J. Harris, both of Decatur, for appellees.

BROWN J.

This appeal is from a decree dismissing the appellant's bill as to the defendants, Central National Bank of Albany, John Davis, and F. S. Hunt, which sought to cancel and set aside as a fraudulent a conveyance made on the 16th of December 1924, by complainant's debtor, John L. Robinson, to L. D. Ford.

The evidence clearly sustained the allegation of the bill as to the existence of the complainant's debt against Robinson, that it antedated the conveyance, and that the conveyance was voluntary and therefore constructively fraudulent.

It also appears without dispute that the property in question consisted of a lot located in the city of Albany, owned by the complainant's debtor John L. Robinson and one Leo M. Warten as cotenants; that before the filing of the bill by complainant, Robinson had filed a bill in the circuit court of Morgan county, in equity, against Warten, to have the property sold for division between the cotenants, and that case had proceeded to final decree, and the property was then advertised for sale. The partition proceedings are in no way assailed by the bill as originally filed or as amended, and no steps were taken by the complainant either to stay the sale or to intercept the proceeds thereof and subject them, other than the filing of the bill, making Robinson and the Central National Bank of Albany, who were parties to the partition proceedings-the bank having acquired the interest of Warten at execution sale-parties to the bill and the filing of a lis pendens notice in the office of the judge of probate of Morgan county as provided by statute. Code 1923, §§ 6877-6886.

The property was sold by the register under the pending decree for distribution on January 19, 1925, and the Central National Bank became the purchaser, and thereafter conveyed to Davis & Company, a partnership composed of John Davis, F. S. Hunt, and Robert Ford. Davis and Hunt were made parties by amendment to the bill.

In the absence of allegations in the bill assailing the proceedings in the partition suit, and the proceedings in the suit between the Central National Bank and Warten, as collusive and fraudulent, the principles declared in Gay, Hardie & Co. v. Brierfield Coal & Iron Co., 94 Ala. 303, 11 So. 353, 16 L. R. A. 564, 33 Am. St. Rep. 122; Id., 106 Ala. 615, 17 So. 618, are not applicable. The bill in that case "assailing the mortgage bonds as having been issued without consideration, in fraud and violation of constitutional provisions, and the judicial proceedngs [in the Federal court] as fraudulent and collusive." 106 Ala. 621, 17 So. 618, 619.

No principle is better settled than that every material fact essential to relief must be averred as well as proved, and want of allegations is as fatal as failure of proof. McDonald v. Mobile Life Ins. Co., 56 Ala. 468; Westbrook v. Hayes, 137 Ala. 572, 34 So. 622.

The question of controlling importance in this case is whether or not the complainant acquired a lien on the property that is superior to the title acquired by the bank through its purchase at the register's sale.

It is well settled that, though prior to and at the time of filing the bill by a simple-contract creditor to subject property of his debtor fraudulently conveyed, he has no lien, "yet, when the bill is filed, and process served, a lien is acquired on the property conveyed, which will prevail over any subsequent alienation by the debtor or his grantee, and over the claims of subsequent judgment creditors, or of an assignee in bankruptcy." Evans v. Welch, 63 Ala. 250; Weis v. Goetter Weil & Co., 72 Ala. 259; Hines v. Duncan, 79 Ala. 112, 58 Am. Rep. 580; Dargan v. Waring et al., 11 Ala. 988, 46 Am. Dec. 234; Kelly v. Turner, 74 Ala. 513.

To quote from Hines v. Duncan, supra: "It may be regarded as settled in this State, whatever may be the rule in other States, that a bill in equity, with service of process, by a creditor to set aside a fraudulent deed and have the land of his debtor sold, gives the complainant a lien on the land, which will not be defeated by a bona fide sale by the defendant, or under an execution on the judgment of another creditor, which did not have a prior lien. It was so held in Dargan v. Waring, 11 Ala. 988, 46 Am. Dec. 234; and there has been no subsequent departure from the rule. On the contrary, it has been reaffirmed. Evans v. Welch, 63 Ala. 250. *** In a bill brought for such purpose, the particular property sought to be subjected must be specifically described. The remedy is also specific, as the court deals only with the property thus mentioned, and its liability. To this extent the proceeding is in rem, though in form, and other respects, it is a proceeding in personam. In Kelly v. Turner, 74 Ala. 513, speaking of the operation of the decree on a bill by a creditor resorting to a court of equity to subject the equitable separate estate of a married woman, and the consequent necessity of specifically describing the property, on which the decree is to operate, it is said: ...