Zelnicker v. Brigham & Co.

STONE, J. — The present bill was filed by simple-contract creditors, under section 3886 of the Code of 1876, which enacts, that " a creditor without a lien may file a bill in chancery, to subject to the payment of his debt any property which has been fraudulently transferred, or attempted to be fraudulently conveyed, by his debtor.” It is contended for appellants, defendants below, that this statute was intended to apply only to cases in which a discovery is sought from defendants; and inasmuch as the present bill is not so framed as to call for a discovery, it is without equity. The argument is, that because the three sections immediately preceding the one under discussion relate to bills of discovery, construing them in pari materia, it must be confined to the same subject. Perhaps, a sufficient answer to this is, that wo have uniformly ruled otherwise. — Lide v. Parker, 60 Ala. 165; Evans v. Welch, 63 Ala. 250, 256; Lehman v. Meyer, 67 Ala. 396, 402. Ve are not able to perceive any such connection as is contended for. But there is a conclusive answer to the argument. Sections 3883-4-5 of the Code of 1876 have stood on our statute-books, without change, ever since the Code of 1852 went into effect. Code of 1852, §§ 2988 to 2990 ; Rev. Code, §§ 3443 to 3445. Section 3886 was enacted February 24th, 1860 — Pamph. Acts, 35 — as an independent grant of. jurisdiction, and has been transcribed verbatim, in the Codes since that time. Its collocation was the work of the codifiers, and can not demand a construction, which it could not have received ^before it was so placed. There is nothing in this objection. Did the chancellor correctly rule, that the conveyance, or sale, of the stock of merchandise by Joseph J. Zelnicker to Louise N. Zelnicker, was fraudulent as against the creditors of the former? The bill charges that, before and at the time of the conveyance, complainants were creditors of the said Joseph J., and that the conveyance of the latter to said Louise N. was in payment of alleged indebtedness from him to her. The bill then avers, that said alleged indebtedness was “ altogether sim- ' [603] nlated and fictitious, or that, if any thing was really due from him to her, the true amount thereof was intentionally exaggerated and swollen by all of said defendants, and that the property and accounts so sold by him to her were estimated and taken at much below their real value.” The claims of Brigham & Co., on which the bill is filed,- consist of - three promissory notes, all bearing date before the conveyance was made by John J. to Louise N. Zelnicker. In the foot-note to the bill is an express waiver of oath to the answers of defendants. This being the case, the answers, even if responsive, are mere pleading, and not evidence. — Code of 1876, § 3762. In the record, and noted in the note of submission, is a consent or agreement of counsel for'defendants, admitting that the three notes sued on were executed by Joseph J. Zelnicker, that complainants are the holders of them, and that they are unpaid, valid, outstanding claims against him, the said Joseph J. The defendants offered no testimony. This case is thus brought directly within the principle declared in the case of Hubbard v. Allen, 59 Ala. 283, and Buchanan v. Buchanan, 72 Ala. 55. In such a contest, the burden of proving that the conveyance was founded on an adequate, valuable consideration, rests on the grantee j and failing to make such proof, the conveyance must be pronounced fraudulent. This the chancellor did, and did not err therein. This disposes of the material assignments of error made for appellants, adversely to their interests.. The assignments of error by appellees, indorsed on the transcript by consent of appellants, must share the same fate. True, the claim of exemption set up in the original answer is insufficient. But, while the case was in fieri, the chancellor allowed an amended claim to be interposed, This was within his jurisdiction, and within the legitimate bounds of amendment. If necessary, we would treat that claim as an amendment of the answer. In substance and terms, it contains all needed averments. The decree of the chancellor is affirmed. Let the costs, of appeal be paid equally by appellants and appellees.