Evans v. Welch

BBICEELL, C. J. No civil action, if the cause of action survives, abates by the death, or other disability of the plaintiff, or of the defendant; but, on motion, the same must, within eighteen months after the occurrence of the disability, be revived against the legal representative of the deceased, his successor, or the party in interest. If the action is by or against several jointly, the death of one may be suggested, and, if the cause of action permits, the suit may be prosecuted by or against the survivors. — Code of 1876, § 2908. The action of ejectment, or the corresponding statutory real action, may be revived, on the death of either plain [254] tiff or defendant. If there is a sole plaintiff, or if there are several plaintiffs, the revivor may be in the name of the personal representative, and of the heirs or devisees jointly, or in the name of either; depending, in some degree, on the extent to which it is proposed subsequently to prosecute the action. If it is proposed to proceed for the recovery of the possession, and for damages accruing prior and subsequent to the death of the plaintiff, the revivor must be in the name of the personal representative alone, or in his name jointly with the heirs and devisees. The personal representative has the exclusive right of recovering such damages as accrued in the lifetime of the deceased plaintiff; and of them there can be no recovery, unless he is a party. He has, also, the right to intercept the entry and possession of the heir, or devisee, and to apply the rents, or, under the orders of the Court of Probate, make sale of the lands, for the payment of debts, or for distribution; and this confers upon him the right to revive the action in his own name, and to prosecute it to a final judgment, recovering the possession, and, as an incident, the rents accruing prior and subsequent to the death of his testator, or intestate. This right he is not bound to exercise — he may not intervene at all, or he may intervene only to recover the rents accruing prior to the death of his testator or intestate. , In either event, the heirs or devisees may be made parties plaintiff. — Ex parte Swan, 23 Ala. 192; State v. Nabors, 7 Ala. 459; Rowland v. Ladiga, 21 Ala. 9. In whatever right, and by the introduction of whatever parties, it is proposed to cure the abatement, the revivor, dr the making a motion to revive, must be made within eighteen months after the occurrence of the disability. The statute is mandatory, and the right is barred, if it is not asserted within that period. — Pope v. Irby, 57 Ala. 105; Brown v. Tutwiter, 61 Ala. 372. More than eighteen months having elapsed after the death of the plaintiff, George Riser, and no suggestion of his death having been made, no motion entered for a revivor in the name of his personal representatives, or of his heirs or devisees, there was, as to him, and his rights and interests, an abatement which could not be cured. An amendment of the complaint,'striking out his name and inserting the names of his heirs as plaintiffs, would not cure it.- The office of an amendment of pleading is to cure defects or omissions, existing at the institution of the suit. That is the period of time to which it refers generally, and from which it takes effect. It produces a change in the pleading, plight and condition of the suit, while a revivor simply restores the cause to the condition in which it was [255] When the abatement occurred. The principle and reason is thus stated in 1 Bacon’s Abr. 11: “Here, the general rule to be observed is, that whenever the death of any party happens pending the writ, and yet the plea is in the same condition as if such party were living, there such death makes no alteration; for, when the death of the parties makes no change of proceedings, it would be unreasonable that .the surviving parties should make any alteration in the writ; for, if such writ and process were changed, it would set rights but in the same condition they were in at the death of the parties; and it would be absurd that what made no alteration should change the writ and the process; and on this rule all the diversities turn.” Nor is it the office of an amendment of a complaint, in an action at law, to introduce parties who have acquired interests and rights by mere succession to the rights and interests of the original parties. This is the office of a revivor; and the bar of the statute, as to a revivor, cannot be avoided by resort to an amendment. The Circuit Court erred in permitting the introduction of the heirs of George Biser, as parties plaintiff, by an amendment of the complaint. A conveyance, fraudulent because of an intent to hinder, delay, or defraud creditors, is valid between the parties, and operative against all the world, except creditors who are pursuing legal remedies to compel the appropriation of the property conveyed by it to the satisfaction of their debts. Those only are sustaining immediate injury from it, and are in. a condition to complain of it. As against.a simple-contract creditor, it is valid; and, in the exercise of its original jurisdiction, a court of equity would not, at his instance, interfere for its vacation. The mere fact that he was a creditor, conferred upon him no particular, specific right or interest in or to the property of the debtor — no lien, or charge upon it, diminishing or embarrassing the right of alienation. Nor could it be known, until his demand was reduced to judgment, that he stood in the relation of a creditor, or that the remedies of the law were not adequate. The intervention of any court, at the instance of a stranger, to avoid contracts binding between the parties, or which they elect to treat as binding, would be unwarranted. There were, however, two classes of cases in which a court of equity would intervene, for the relief of judgment creditors. The distinction between the two was well defined; the ground of jurisdiction, the character of relief granted, was in each essentially different. The right to the one relief might be lost, while the other would remain unimpaired. The first was, where the creditor sought to reach equitable [256] assets, or assets which could not be reached by any process issuing on the judgment. In this class of cases, the court would, not intervene, unless it was shown that legal remedies had been exhausted — a prosecution of execution to a return of no property found. Until then, the inadequacy of legal remedies would not be apparent, and there could be no ground for invoking equitable relief. — 1 Brick. Dig. § 219, 655. The creditor obtained a lien by the filing of the bill, and was entitled to priority of satisfaction from the assets sought to be condemned. — lb. §§ 221-222. The other class of cases is when the judgment of the creditor, or the execution issuing upon it, entitles him to a lien upon the property,' real or personal, of the debtor, but a conveyance declared fraudulent and void as to him by the statute of frauds, interposes an obstacle to the full enforcement of the lien at law. The conveyance is void, and the creditor could sell under his execution at law; but the conveyance would embarrass the sale, and cast a cloud on the title acquired by it. The court intervenes, to render the lien more available, by pronouncing the invalidity of the conveyance, and removing it as a cloud from the title. The filing of the bill gave the creditor a lien on the particular property, superior to any a subsequent judgment creditor could acquire; and superior to any title a purchaser, though bona fide, could obtain from the debtor. — Dargan v. Waring, 11 Ala. 988; 1 Brick. Dig. §§ 215-16-17, 655. The statutes have enlarged the jurisdiction of the court, and equitable assets may now be reached by a simple-contract creditor, whenever the creditor is entitled to an attachment at law (Code of 1876, §§ 3816-3856); and “a creditor without a lien may file a bill in chancery to subject to the payment of bis debt any property which has been fraudulently transferred, or attempted to be fraudulently conveyed, by his debtor.” — Code of 1876, § 3886. The purpose of this statute, its meaning and operation, cannot be misapprehended, and there is but little room for construction of it. As to property the debtor has fraudulently conveyed, or attempted, to convey fraudulently, the simple-contract creditor is clothed with the same right to resort to a court of equity, entitled to the same remedy and relief, to which he or any other creditor having a lien was entitled before the statute. In other words, the necessity for a specific right, or a lien, to charge the property fraudulently conveyed, or attempted to be fraudulently conveyed, is dispensed with, as a condition on which the jurisdiction of the court depends. Though prior to, and at the time of the filing the bill, the creditor has no lien; yet, when the bill is filed, and process served, a lien is [257] 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. — Dargan v. Waring, supra; Sedgwick v. Menck, 6 Blatchf. 156; Carr v. Thorington, 68 N. C. 560; Fetter v. Cirode, 4 B. Mon. 482; Wooten v. Clark, 23 Miss. 75; Storm v. Waddell, 2 Sandf. Ch. 494. In this case, each party deduces title from Player, and claims to be vested with the legal' estate in the premises, derived from him through judicial sales. The defendants claim under a sheriff’s sale, made in execution of a judgment rendered on the first day of May, 1869, near or quite a month after Welch and others had obtained a lien on the premises, by the filing of the bill to set aside as fraudulent the mortgage to Reynolds. There Was no laches in the prosecution of that suit to a final decree, perfecting the lien, and condemning the premises to sale. The plaintiffs are purchasers under that decree, and have obtained a conveyance from the register, the sale to them having been confirmed by the Court of Chancery. That they have the superior title, is a proposition too plain for argument. The maxim applies, qui prior est in tempore, potior est in jure. A pending suit in equity, not collusive, duly prosecuted, operates as a notice to all the world; and a purchaser during its pendency, of the real estate involved, when the purpose of the" suit is to charge the estate, is affected and bound by the decree, as if he were an actual party to it. — Harris v. Carter, 3 Stew. 233; Chaudron v. Magee, 8 Ala. 570; Fash v. Ravisies, 32 Ala. 451. We do not deem it necessary to -review at length the instructions of the court to the jury. They were in substantial conformity to this view, and there is no error in them, prejudicial to the appellants, ior the error first noticed, the judgment must be reversed, and the cause remanded.