Stoutz v. Huger

• Decision Date: 20 June 1895
• Citation: 18 So. 126,107 Ala. 248
• Parties: STOUTZ v. HUGER ET AL.
• Court: Alabama Supreme Court

18 So. 126

107 Ala. 248

STOUTZ v. HUGER ET AL.

Supreme Court of Alabama

June 20, 1895

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

The bill in this case was filed by R. W. Stoutz, as administrator of the estate of Charles Werborn, deceased, against D. E Huger and others, and sought to subject to the satisfaction of a judgment recovered by Charles Werborn against the respondent D. E. Huger certain real property in the city of Mobile. On the final submission of the cause, upon the pleadings and proof, the chancellor decreed that the complainant was not entitled to the relief prayed for, and ordered his bill dismissed. The complainant prosecutes the appeal from said decree, and assigns the same as error. There was also a motion made to dismiss the appeal. Reversed and rendered.

Frederick G. Bromberg, for appellant.

Overall Bestor & Gray, for appellees.

On Motion to Dismiss.

HEAD J.

A bill was filed by Charles F. G. Peters, as administrator with the will annexed of Charles Werborn, deceased, against the appellees to set aside a conveyance of land as fraudulent and subject the land to the payment of a judgment which complainant's testator recovered, in life, against D. E Huger, one of the appellees. On January 22, 1892, on hearing on the merits, the chancellor rendered a decree dismissing the bill. On December 6, 1892, Richard W. Stoutz filed with the register in the cause an application as follows: "Comes Richard W. Stoutz and exhibits and files herewith his letters as administrator of the estate of Charles Werborn, dec'd, and, as such administrator, prays an appeal to the supreme court of Alabama from a final decree rendered in the above-entitled cause on the 22nd day of January, 1892, returnable on the first Monday in January, 1893. [Signed] Richard W. Stoutz, Admn." He filed with this formal letters of administration cum testamento annexo upon said estate, issued to him on September 24, 1892, by the judge of probate of Mobile county. He also filed security for costs of appeal. A motion is made in this court to dismiss the appeal on the ground that the appellant had no authority to sue it out. We have stated all the record shows touching Stoutz's connection with the case.

Appeals are entirely of statutory creation. Being remedial, the statutes creating and regulating them will be liberally construed; but authority for the appeal in every case must be found in the statute. May v. Courtney, 47 Ala. 185. The laws to which we must have recourse are as follows: Section 3611 of the Code provides that "from any final judgment or decree *** an appeal lies to the supreme court *** on the application of either party, or his personal representatives." Sections 3612 to 3618, inclusive, confer the right of appeal from certain interlocutory orders, from orders sustaining or dissolving injunctions, appointing receivers, denying remedial writs, and from abolished courts. Chapter 2, beginning with section 3619, regulates the time within which appeals may be taken, and the manner of taking and presenting them. Section 3638 provides: "When either party to a judgment or decree dies after judgment or decree rendered, and before appeal taken thereon, an appeal may be presented in the name of, or against the legal representative of the deceased, on producing satisfactory evidence to the clerk, judge of probate or register of the death of the party, and grant of letters testamentary or of administration." Rule 86, Chancery Court Practice, provides that any complainant or defendant in a cause in which a decree or order final may have been rendered may appeal to the supreme court in the name of himself and all the other complainants or defendants to the decree. Code, p. 826. The Code makes ample provision for the revivor of causes pending, as well in this court as in the lower courts. Id. §§ 3462, 3656, and other provisions. Upon due consideration of the foregoing provisions, in view of their remedial nature, and the liberality with which they should be construed to advance the objects the law intended, a majority of the court are of the opinion that the spirit of the provisions gives the appellant the right of appeal, under the facts of this case, and the motion to dismiss the appeal is accordingly overruled.

On the Merits.

The statutes of limitations of 3 and 6 years are not applicable to this case. It is a proceeding to enforce a constructive trust in lands, to which the statute of 10 years is a good defense, if the case is not excepted from its operation by fraudulent concealment of the facts, or some other saving of the statute. Lockard v. Nash, 64 Ala. 385, and cases cited. We are not under the necessity of deciding whether the relief here sought is barred by the last-named statute, for the reason that the defendants have not interposed that defense. The defense of the statute of limitations to the original cause of action of the creditor against the debtor was personal to the debtor; and in this case, the debtor, who occupies substantially the position of an alleged fraudulent grantor, having suffered judgment against him at the suit of the complainant, his wife, who occupies substantially the position of an alleged fraudulent vendee of the property sought to be subjected, cannot interpose that defense.

On May 5, 1874, Henrietta Battle and others conveyed by deed to the defendant Harriet W. Huger, wife of the defendant Daniel E. Huger, the real estate described in the bill, consisting of a dwelling house and lot in the city of Mobile, for the consideration, recited in the deed, of one dollar, and the satisfaction of a mortgage to the executors of John A. Battle, deceased, the amount of which mortgage debt was $10,000. The defendants, Mr. and Mrs. Huger, went into immediate possession of the premises, and have since occupied them as a residence and homestead. On November 9, 1882, the defendant Daniel E. Huger began purchasing goods of Charles Werborn, complainant's testator, and incurred indebtedness to him aggregating February 7, 1884, $1,163.30, on which the debtor made sundry payments entitling him to an aggregate credit of $550, leaving due February 7, 1884, $613.30. On the 17th day of December, 1889, Werborn reduced this demand to judgment, in the circuit court, in the sum of $900.78 and costs, and had execution thereon, which was returned, May 2, 1890, "No property found." On December 26, 1890, Charles F. G. Peters, as administrator with the will annexed of Werborn, filed this bill, alleging, in substance, that said Daniel E. Huger in fact purchased and paid for said house and lot, and had the title conveyed to his said wife with the actual intent to hinder, delay, or defraud his creditors; that at the time of the purchase and payment he was insolvent; that the property was, and had always been, worth more than $2,000 (the statutory exemption); and praying to subject the excess of its value to the payment of said judgment. The answer puts in issue the alleged equity of the bill. It appears that, after the rendition of the final decree in the cause, the appellant, Richard W. Stoutz, was appointed administrator with the will annexed of Werborn's estate. He exhibited his letters to the register, and sued out the present appeal. The issue in the cause is purely one of fact; and the question for decision is whether the payments made by the husband, D. E. Huger, of the purchase money, were made, and the title caused to be conveyed to his wife, for the purpose of placing the property beyond the reach of his creditors. The complainant being a subsequent creditor, the burden is upon him to prove the investment of the husband's funds in the purchase with the fraudulent intent above mentioned. The defendant Daniel E.

Huger was a cotton broker in the city of Mobile, living there with his wife, the said Harriet W. It appears from the judicial proceedings at law introduced in evidence by the complainant that on May 9, 1871, A. P. Bush, in a proceeding by garnishment wherein Leach, Harrison, and Forwood were defendants, recovered a judgment nisi against said D. E Huger, which was made final on June 13, 1873, for $3,778.38. Execution was issued thereon July 4, 1873, and returned, "No property found," January 2, 1874. An alias was issued August 28, 1877, and likewise returned October 16, 1877. On February 16, 1874, Leach, Harrison, and Forwood obtained judgment against him for $8,257.08 on a demand alleged in the complaint to have been contracted May 25, 1870. Execution was issued March 6, 1874, and returned July 3, 1874, "No property found." Probably, though it does not affirmatively appear by proof, the $3,778.38 recovered by Bush on default of Huger as garnishee, in fact, represents, in part, the said $8,257.08 recovered by Leach, Harrison, and Forwood. These judgments, it is observed, were prior to the purchase of the house and lot, the subject of this suit, and were in force at the time of that purchase. Subsequently, other judgments were...