Williams v. Stoutz

McOLELLAN, J. We concur with the chancellor that a probate judge, to whom an administration bond is payable, is not, upon a breach thereof, “the person aggrieved,” within the meaning of section 2575 of the Code; and that while he may sue for such breach, his right to do so results from the fact that he is payee in the instrument, and not upon any consideration that he is the injured party, or a creditor of the obligors therein; and not being a creditor he can not maintain [518] u bill against the obligors for discovery and appropriation to the satisfaction of the breach of their property. — Code, §§ 8545-6-7; Amason v. Nash, 24 Ala. 279; Morrow v. Wood, 56 Ala. 1. But a different conclusion on this point would be of no advantage to appellant. Conceding that he was a creditor of the sureties on the administration bond in question in such sort as to entitle him to maintain a bill for discovery and relief against them, or a bill to subject to their liability on the bond property which they had fraudulently conveyed, the averments of the present bill are wholly insufficient to invoke equity jurisdiction to either of those ends. No facts are alleged upon which a charge of fraud could be rested, and no such charge is made. With respect to the discovery it prays, it contains no allegations showing the necessity for, or utility of, such relief. It is sought in argument to support the jurisdiction of chancery by invoking a construction of sections 8545, 6 and 7 of the Code, supposed to have been adopted by this court in the case of Montgomery & Florida Railway Co. v. McKenzie, 85 Ala. 546; but, if that case was ever open to the interpretation insisted upon-, it has since been repudiated in subseqent adjudications expressly to the effect, that the relation of debtor and creditor does not alone authorize a resort to equity under those sections, but that in addition thereto, averment must be made (1) that the debtor has not visible means subject to legal process of value sufficient, to pay the demand, and (2) that he has assets which by reason of “concealment, hiding out, or something of that nature,” can not be reached by the ordinary legal processes, but which are liable for his debts, and a discovery of which is sought.— Lawson v. Warren, 89 Ala. 584; McCollough v. Jones et al, 91 Ala. 186. Neither the original nor amended bills contain any averment of these facts without which the discovery prayed could not be granted, and if decreed would, for aught that appears by the bill, be entirely nugatory and abortive. The bill as amended proceeds on the theory that a probate judge, who has approved an insufficient bond, and hence may ultimately be liable to the distributees' on his official bond for the sum decreed to them against the administrator, may come into equity for the purpose of subjecting property of the sure-i es to the satisfaction of the decree, to the end of the exoneraation of himself and his own bondsmen. There are to our minds two reasons why the bill can not be maintained in this aspect. In the first place, it fails to allege facts which show that the bond the complainant approved was insufficient so -that his official bond could be made to respond in an action [519] by the distributees; and secondly, the basis of the relief sought is complainant’s own misfeasance which can not afford him a right of action. The bill was without equity in either aspect. The demurrers were properly sustained, and the decree dismissing the-bill is affirmed.