Henderson v. McVay

RICE, C. J. Henderson, the complainant, has a judgment against Lancaster C. MeVay, which he here seeks to set off against a judgment which MeVay recovered against C. C. Gewen, sheriff of Lawrence county, and assigned to Isaac N. Owen on the day of its rendition, before this suit was commenced. To affect the equity derived' by Owen from this assignment of the judgment to him, the facts which give Henderson aright to the set-off claimed by him must be alleged, as well as proved, to have existed before Owen acquired his right. No such facts are averred. True, the insolvency of MeVay at the time the bill was filed is averred, but not his insolvency at or before the assignment to Owen; and his insolvency after the assignment could not give Henderson the right to the set-off' which he seeks. It is impossible to sustain the claim to the set-off'. — Robbins v. Holley, 1 Monroe, 191; [473] Aikin v. Satterlee, 1 Paige, 289; Sellers v. Bryan, 2 Dev. Eq. R. 358; Cotton v. Evans, 1 Dev. & Batt. Eq. R. 284; Hackett v. Connett, 2 Edw. Ch. R. 73; Francis v. Rand, 7 Conn. R. 221. Nor can we sustain tbe claim of Henderson to reach the judgment against G-ewin, on tbe ground that its assignment to Owen was fraudulent and without consideration. In the first place, Henderson shows no right to raise the question of fraud in the assignment, as he does not allege a return of no property on an execution issued under his judgment against said McVay. — Sanders v. Watson, 14 Ala. R. 198. In the second place, if he had the right to raise that question, the answer, of Owen asserts that the assignment was fair and for a valuable consideration ; and the answer, in that respect, is responsive to the statement and interrogatory of the amended bill, and is not overturned by the evidence. The answer, in that particular, being responsive, and not overturned by the evidence, must prevail. There is no error; and the decree is affirmed, at the costs of appellant.