Chardavoyne v. Galbraith & Co.

CLOPTON, J.- — The bill does not purport to be filed under section 3882 of the Code, which authorizes a creditor, when an execution for money has been issued from any court, and is not satisfied, to come into chancery for a discovery of property belonging to the defendant, or held in trust for him ; nor under section 3886, which provides, that a creditor, without a lien, may file a bill in chancery to subject to the payment of his debt property fraudulently transferred, or attempted to be fraudulently conveyed by his debtor. The complainants are creditors with a lien, and invoke the original jurisdiction, which courts of equity possessed, prior to and independent of the statutes, to entertain suits in aid of creditors, who had proceeded to judgment and execution, without obtaining satisfaction, and their debtors have interposed conveyances or transfers, which wrongfully offend their rights. Divesting the bill of redundant allegations, and averments of evidential facts, it substantially alleges, that complainants in 1881 obtained a judgment against the defendant, W. Y. Chardavoyne, for twelve hundred and five 57-100 dollars, on which three successive executions have been issued, and returned “ no property found,” and that another execution issued thereon was in the hands of the sheriff at the time of the filing of the bill. It further alleges, that soon after the rendition of the judgment, the debtor purchased, with funds belonging to him, a large stock of goods and merchandise, and has continued so to purchase goods, which he has fraudulently transferred to his wife and son, without consideration, in whose names he is carrying on a mercantile business. The truth of the allegations of the bill being assumed, the case made is that of a creditor, who having established his claim at law, and having an execution in the hands of an officer, which operates a lien, invokes the aid of the court to remove an impediment to its availability, caused by the alleged fraudulent transfer of his debtor’s property to his wife and [524] son after the rendition of the judgment. The bill sufficiently alleges a voluntary transfer made with the intent to defraud complainants, who are antecedent and existing creditors. The jurisdiction in such case does not depend on the necessity for a discovery; nor is a particular written conveyance or transfer, which the court must be asked to annul, essential, unless a written instrument is requisite to pass the legal title. The property being visible, tangible, and capable of seizure under execution, a discovery is unnecessary ; and a fraudulent parol sale or gift of personal property, consummated by delivery, is as effective to embarrass the enforcement of the lieu of the execution as if evidenced by writing; and may, because resting in parol, and consequent uncertainty, serve to increase the necessity for its removal. Neither does the jurisdiction depend on the want of an adequate legal remedy. Courts of law and courts of equity, have, in such cases, concurrent jurisdiction. The creditor may proceed to levy and sale under the execution, at law, or he may resort to equity to remove the obstruction interposed by the fraudulent transfer or disposition of the property. Unlike the case of a creditor, who is seeking to reach equitable assets, or property, which cannot be taken under execution by reason of the state of the title, the complainants are not required to show that they have exhausted their legal remedies by the return of execution no property found. The court of equity interposes, not to establish the claim, but to enforce a lien, already acquired, in support or furtherance of the remedy at law. The statutes do not operate to abrogate or repeal, but to enlarge, the original jurisdiction. — Lehman v. Meyer, 67 Ala. 396. Under our rules, interrogatories appended to a bill are incorporated in, and become a part thereof; but do not properly constitute, separate from the stating part of the bill, the subject of demurrer. The defendant may protect himself against answering special interrogatories by demurring to the part or parts of the bill on which they are based; but when interrogatories are impertinent or .not warranted by any statement of the bill, he may move to strike out, or decline to answer. There was no error in overruling the demurrer. Affirmed.