Stephenson v. Bird

• Decision Date: 14 April 1910
• Citation: 168 Ala. 422,53 So. 93
• Parties: STEPHENSON v. BIRD ET AL.
• Court: Alabama Supreme Court

53 So. 93

168 Ala. 422

STEPHENSON v. BIRD ET AL.

Supreme Court of Alabama

April 14, 1910

Rehearing Denied June 30, 1910.

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Bill by W. P. Hofferbert against C. H. Bird and others to subject certain property to complainant's debt. An order was made substituting Richard L. Stephenson, trustee in bankruptcy of said C. H. Bird, as the party complainant. From a decree sustaining the sufficiency of the plea, complainant appeals. Reversed and remanded.

The plea referred to is the same plea set out in the case of Richard L. Stephenson. Trustee, v. C. H. Bird and Others, 53 So. 92.

E. W Godbey, for appellant.

Wert &amp Lynn, for appellees.

SAYRE J.

Early in December, 1904, one Hofferbert brought his creditors' bill against appellees to subject certain choses in action alleged to have been fraudulently transferred by Bird to his wife and used by her in the purchase of stock of an "ostensible corporation" organized for the purpose of covering the scheme. Six months later the bankruptcy of Bird was suggested, and in 1906 the chancery court made an order substituting appellant, as trustee in bankruptcy of Bird, as party complainant, and directing that the cause proceed in his name. In 1908 defendants filed a plea setting up that Bird had been adjudicated a bankrupt on May 1, 1905 and that upon his application for a discharge the creditors of his estate had filed specifications of opposition on the ground, among others, that "said C. H. Bird had transferred, removed, destroyed, or concealed, or permitted to be removed, destroyed, or concealed, a part of his property with intent to hinder, delay, or defraud his creditors." The plea avers that upon issue joined and evidence taken the court of bankruptcy decreed Bird's discharge. That decree was pleaded as a bar to the further maintenance of complainant's bill. The chancellor sustained the sufficiency of the plea, and this appeal followed.

The filing of complainant's bill brought the property alleged therein to have been the subject of the fraudulent transfer within the jurisdiction and control of the chancery court and thereby created a specific equitable lien on the property. Evans v. Welch, 63 Ala. 250; McDermott v. Eborn, 90 Ala. 258, 7 So. 751; Werborn v. Kahn, 93 Ala. 201, 9 So. 729. No intendments are to be indulged in favor of the plea. As it does not affirmatively appear that the bill was filed within four months before the petition in bankruptcy, we cannot intend the fact to be so. The judgment and decree of discharge, notwithstanding the ground of opposition interposed, involved no more than a finding that the bankrupt had not, within four months before the filing of the petition in bankruptcy, transferred any of his property with intent to hinder, delay, or defraud his...