Sorrell v. Vance

HEAD, J. Section 3545, Code of 1886, provides, that, “A creditor, having obtained a judgment at law upon which execution has issued and been returned ‘no property found,’ or a creditor without a lien or-judgment, may, in the court of chancery of the district in which the judgment debtor resides, or in the court of chancery of the district in which the judgment was rendered, file a bill for the discovery of the assets of the debtor subject to the payment of debts; and the debtor must answer on oath, and disclose all property, real or personal, in which he may have, or may claim, an interest, legal - or equitable ; all moneys, effects, or choses in action, in which he may have, or may claim, an interest, legal or equitable, where such property, effects, or choses in action, in which he has, or may claim, an interest, legal or equitable, and where such moneys, effects or choses in action may be found.” Section 3547 provides, that, ‘‘If from the answer it appears that the defendant has property, real or personal, or an interest in property, real or personal, subject to the payment of debts; or has moneys, effects, or choses in action, or an interest in moneys, effects, or choses in action, subject to the payment of debts,_ whether such property, moneys, effects, or choses in action, be within or without the 'State, the court, in term time or in vacation, must make all such orders or decrees as may be necessary and proper to reach and subject such property, moneys, effects, or choses in action, and for that purpose may appoint a receiver with authority to demand, sue for and recover, or otherwise to reduce to possession such property, moneys, effects, or choses in action; and may require the judgment debtor to make to such receiver all conveyances, assignments, or transfers, which may be necessary and proper to enable hiin to receive, or to sue for and recover such property.” The appellees, Vance & Kirby, obtained judgment in the the court of law, on the 26 day of January, 1893, against the appellants, Sorrell, Hickman, Phil [210] lips and Hestor, on a .debt contracted by them, as a .,partnership,.under the name of Ellis Hickman & Co. ;-Execution issued on this judgment, and was returned “No property found.” On the • 3d day ,of February, 1893, appellees filed in the office of the probate judge of-the proper county a certificate of the. judgment, in pursuance of the act of the General Assembly .of Alabama, ,. approved-February 29,1889, (Acts 1888-89,-p. 60), providing for the creation of judgment liens upon the prop* erty .of defendants; but the same was not registered until the 8th day of February, 1893. The bill is filed for, discovery of assets under septions 3545 and -3547. of ..'the-Code above copied. There are allegations touching the concealment of. partnership assets by the firm of Ellis Hickman & Co., .and individual assets -by specified individual members of that firm. Thus, it is alleged-that ■.[‘Ellis Hickman &Co.- own property in-the .way of notes, , accounts, and- other, debts owing, to, them, which they are collecting as fast as possible, and, fraudulently concealing- and keeping from your orators and. their other . creditors.” It is. also alleged that on or about- February ...6, 18.93, they sold, at.,one sale, to one Conway their , -stock of goods worth about $1,800 for about $1,500, for the purpose, on .their part, of defrauding their creditors,.by converting their goods into money, and concealing. the .proceeds ;,and. that Ellis Hickman received, the said proceeds,, and he .and Hestor are hiding them, out, together with all ¡other,assets of the firm. It is alleged that complainants are not informed whether Conway, the pur.chaser,..participated in this fraudulent intent or not. ■ It .is alleged nex;t that Sorrell owned real estate •'Subject to • this debt which, on January 16-, 1893., in, anticipation of . the recovery .of complainants’ judgment, and to defraud them,, he conveyed by mortgage, to secure a recited loan of $950 — the full value of the land — to his brother, G. ■,,W:<Sorr.ell.; -.and that if he, in fact, received this money, ..he. fraudulently conceals and withholds it from com-.plainants. The same averment is made in reference to G..-W. Sorrell’s participation in this fraud, as in. the c'ase. of Conway. Sorrell, the debtor, owns no other individual property. Complainants allege that -they know of no'property owned by Phillips subject to their- demand ;' but they allege,' generally, .that among all the respondents there is sufficient property hid out, subject to' the [211] payment of their demand, to pay it, if it can be discovered and subjected ; and that they have no property, so subject, which is not hid out and fraudulently withheld from ' the payment of the debt; that by the methods of conveyance referred to, and fraudulent concealment of proceeds and other property of Ellis Hickman & Co., and of the partners thereof, and of Win. M. Sorrell,-and the insolvency of Phillips, complainants do not know and can not find out upon what property their judgment lien operates. The bill prays, in terms ¡ for the specific relief authorized by the sections of the Code above copied, and for general relief. ■ ' ■ The case comes before us from the ' decretal order of the chancellor overruling the demurrers to' the bill. Only one ground of demurrer is insisted on in the argument of appellants’ counsel, and we will consider no other. That' ground is, substantially, that complainants have an adequate remedy to enforce collection of their demand without resorting to equity to discover and s.ub•ject the-assets allegod to be concealed; and the-contention-is founded upon the fact shown by the bill that Ellis Hickman & Co. -owned the stoclr of goods sold to Conway, worth $1,800, at the time complainants filed 'the certificate of their judgment in the-office of the probate judge, which filing, it is contended, created, a .lien on the goods in complainants’ favor, enforceable by execution, which was unaffected by the subsequent sale to Conway. It is a well settled principle that if it appears that the debtor has visible property, sufficient to pay the debt, which can be reached and subjected ,by the ordinary process of levy and sale, equity will not entertain a bill for the discovery of. assets concealed, like that in the present case. Lawson v. Warren, 89 Ala. 584; Sweetzer v. Buchanan, 94 Ala. 574.- Let it1 be conceded that the defendants are in a position to insist that complainants ought to proceed to enforce a judgment lien upon property which they, themselves, have sold and óonvéyed to ánothér- — a proposition we deem it unnecessary now to consider, and to which we, by no means, commit ourselves — and there is, to, our minds, no room for argument in support of appellants’ contention. The a?t entitled, “An.act to amend an act entitled an act to provide for. the registration and lien of judgments and decrees for the payment [212] . of money,” approved February 26, 1889, (Acts 1888-89, p. 60), is plain and unambiguous. It is not open to construction. It provides, in terms that can not be misunderstood, that the certificate of the judgment, filed under the act, shall be registered by the judge of probate in a book tobe kept by him for that purpose, which register shall also show the date of filing and the name of the owner of the judgment or decree, “and every ' judgment or decree so filed and registered shall be a lien upon all the property of the defendant in such county which is subject to levy and sale under execution ; and such lien shall continue for ten years from date of such registration. The registration oí such judgment or decree shall be notice to all persons of the existence of such liens.” The italics are ours. There can be nothing clearer than that both filing and registration are essential to the creation of the lien. In the present case, the certificate was not registered until after the sale to Conway, so that, at the time of that sale, there was no lien. There was no error in the ruling of the chancellor, and his decree is "affirmed. The defendants will plead to or answer the bill within thirty days, with authority in the chancery court, or the chancellor in yacation, to extend the time on sufficient showing. Affirmed.