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[Means v. Hicks' Adm'r.]

was necessary to have the judgment entered without costs, as the judgment-entry shows a specific exception to such taxation. It has been correctly held by this court, that municipal corporations are not, on grounds of public policy, liable for costs accruing in cases of this character. Such municipalities are subdidisions of the political organization of the State, and the proceedings in question were designed for the preservation of the public peace.-City Council of Montgomery v. Foster, 54 Ala. 62.

It is objected by the appellee's counsel that, as the State is denied the right of appeal in criminal prosecutions by statute, the same rule ought to apply to municipal corporations. This is only a quasi-criminal case, and the appellant here is not the State. The practice in this court has uniformly permitted such appeals, and we are not disposed to disturb it.-Intendant and Council of Maricn v. Chandler, 6 Ala. 899; City Council of Montgomery v. Foster, 54 Ala. 62. The judgment is reversed, and the cause remanded.

Means v. Hicks' Admʼr.

Bill in Equity by Surety, against Fraudulent or Voluntary
Grantees of Deceased Co-Surety.

1. Fraudulent and voluntary conveyances; who may assail.-A fraudulent or voluntary conveyance is valid and operative as between the parties, and can only be assailed by a creditor of the grantor, or a purchaser from him.

2.

Same; liability of such grantee, and defenses by him.-The theory on which a creditor of the deceased grantor may maintain a bill in equity against the fraudulent or voluntary grantee, is that he is an executor de son tort; and he may set up any defense against the asserted claim or demand, which might be made by the decedent himself, if living, or by his rightful personal representative. 3. Settlement of accounts of deceased administrator; admissibility and effect as evidence against sureties.-A decree rendered by the Probate Court, on final settlement of the accounts of a deceased administrator, by his personal representative, is, as to the sureties on his official bond, res inter alios acta, and evidence only of the fact of its rendition.

4. Decree against surety; admissibility against co-surety.-A decree in chancery against one of the sureties on the official bond of a deceased administrator, in favor of a succeeding administrator, founded on the default of the deceased administrator, is not competent or admissible evidence against a co-surety, who was not a party to the suit, to show the common liability of the sureties.

APPEAL from the Chancery Court of Greene.

Heard before the Hon. A. W. DILLARD.

The bill in this case was filed on the 24th January, 1876,

65 241

f121 551

[Means v. Hicks' Adm'r.]

by Thomas Eatman, as the administrator of the estate of Tilman Hicks, deceased, against Charles M. B. Means, Newton C. Pyles, and Isabella C. Pyles, his wife; and sought to set aside as fraudulent, either in fact or in law, certain conveyances of property, real and personal, executed to the defendants by William S. Means in his life-time; and to subject the property to the payment of one-half of the amount which the complainant, as administrator, had paid to the personal representative of George Higginbotham. deceased, on account of the default of the former deceased administrator, Benjamin T. Higginbotham, on whose official bond the said Tilman Hicks and William S. Means were co-sureties. The opinion of this court renders it unnecessary to state the various matters which were contested in the court below. On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainant; and his decree is now assigned as error, with numerous rulings on objections to evidence.

W. P. WEBB, for the appellants.

COLEMAN, CLARK & MCQUEEN, contra.

BRICKELL, C. J.-The bill was filed by the predecessor of the appellee in the administration of the estate of Tilman Hicks, deceased, against the appellants, as executors de son tort of William S. Means. The purpose is to set aside conveyances made by William S. Means in his life, to the appellants, of estate real and personal, because such conveyances were voluntary, or made with intent to hinder, delay, and defraud creditors, and to subject the property conveyed to the payment of one-half of a sum of money, which the complainant, as administrator of Tilman Hicks, deceased, had paid in discharge of a liability incurred by said Tilman, and said William S. Means, as the sureties of Benjamin T. Higginbotham, as administrator of George Higginbotham, deceased.

Voluntary conveyances, or conveyances made with an actual intent to hinder, delay, and defraud creditors, are valid and operative as between the parties. A creditor, or a purchaser from the donor or grantor, only, can assail them, or inquire into the consideration, or the intent moving to their excution. Hence, when a voluntary or a fraudulent donee is proceeded against as an executor de son tort-the theory on which a bill in equity is maintained against him, by one claiming to be a creditor of the deceased donor or grantor he can make any defense against the demand with

[Means v. Hicks' Adm'r.]

which he is sought to be charged, that the decedent, or a rightful representative, could make. If the relation of debtor and creditor is not admitted--if it is denied--the burden of proof rests upon the creditor, as it would rest upon him, if he were proceeding against the rightful representative. Halfman v. Ellison, 51 Ala. 543. The primary question, in such cases, is, whether the complainant is a creditor; for, if he is not, he stands in the attitude of an intermeddler raising a clamor, which a court of equity would be illy employed in silencing.

There is an unqualified denial in this case, in the answers of the appellants, of the existence of any demand for which the donor or grantor was answerable. The denial cast upon the appellee the burden of proving the affirmative allegation he had made, of the existence of such a demand. The only evidence of such demand the appellee introduced, was the bond of Benjamin T. Higginbotham, as administrator of George Higginbotham, executed in 1859, in which Tilman Hicks, the intestate of the appellee, and the donor or grantor of appellants, joined as sureties. A breach of the condition of the bond, in which the intestate of the appellee, and the donor or grantor of the appellants, would be. involved in liability, was attempted to be shown only by a settlement of the administration of Benjamin T. Higginbotham, the principal, not made by him, but made by his administrator after his death, and after the death of William S. Means, the donor or grantor. In addition, there was evidence of a decree rendered against the administrator of Tilman Hicks, in the Court of Chancery, at the suit of the administrator de bonis non of George Higginbotham, and proof of payment of the latter decree. Now, the bond of an administrator imports only a conditional liability upon him and his sureties. There is never a liability imposed upon the principal or his sureties, ripening into a debt, converting the bond into a cause of action, until it appears that the condition of the bond has been broken. Of that fact, essential to place the appellee in the relation of creditor, having a right, legal or equitable, to assail any transaction with William S. Means, there is no other evidence, than the record of the settlement made by the administrator of Benjamin T. Higginbotham, after the death of Means, and the decree in the Court of Chancery against the administrator in chief of Tilman Hicks. The bond is merely an instrument, or adminicle of evidence. By itself, it imports only a conditional liability; and without averment and proof of a breach of the condition, it will not create a

[Means v. Hicks' Adm'r.]

by Thomas Eatman, as the administrator of the estate of Tilman Hicks, deceased, against Charles M. B. Means, Newton C. Pyles, and Isabella C. Pyles, his wife; and sought to set aside as fraudulent, either in fact or in law, certain conveyances of property, real and personal, executed to the defendants by William S. Means in his life-time; and to subject the property to the payment of one-half of the amount which the complainant, as administrator, had paid to the personal representative of George Higginbotham. deceased, on account of the default of the former deceased administrator, Benjamin T. Higginbotham, on whose official bond the said Tilman Hicks and William S. Means were co-sureties. The opinion of this court renders it unnecessary to state the various matters which were contested in the court below. On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainant; and his decree is now assigned as error, with numerous rulings on objections to evidence.

W. P. WEBB, for the appellants.

COLEMAN, CLARK & MCQUEEN, contra.

BRICKELL, C. J.-The bill was filed by the predecessor of the appellee in the administration of the estate of Tilman Hicks, deceased, against the appellants, as executors de son tort of William S. Means. The purpose is to set aside conveyances made by William S. Means in his life, to the appellants, of estate real and personal, because such conveyances were voluntary, or made with intent to hinder, delay, and defraud creditors, and to subject the property conveyed to the payment of one-half of a sum of money, which the complainant, as administrator of Tilman Hicks, deceased, had paid in discharge of a liability incurred by said Tilman, and said William S. Means, as the sureties of Benjamin T. Higginbotham, as administrator of George Higginbotham, deceased.

Voluntary conveyances, or conveyances made with an actual intent to hinder, delay, and defraud creditors, are valid and operative as between the parties. A creditor, or a purchaser from the donor or grantor, only, can assail them, or inquire into the consideration, or the intent moving to their excution. Hence, when a voluntary or a fraudulent donee is proceeded against as an executor de son tort-the theory on which a bill in equity is maintained against him, by one claiming to be a creditor of the deceased donor or grantor-he can make any defense against the demand with

[Means v. Hicks' Adm'r.]

which he is sought to be charged, that the decedent, or a rightful representative, could make. If the relation of debtor and creditor is not admitted--if it is denied-the burden of proof rests upon the creditor, as it would rest upon him, if he were proceeding against the rightful representative. Halfman v. Ellison, 51 Ala. 543. The primary question, in such cases, is, whether the complainant is a creditor; for, if he is not, he stands in the attitude of an intermeddler raising a clamor, which a court of equity would be illy employed in silencing.

There is an unqualified denial in this case, in the answers of the appellants, of the existence of any demand for which the donor or grantor was answerable. The denial cast upon the appellee the burden of proving the affirmative allegation he had made, of the existence of such a demand. The only evidence of such demand the appellee introduced, was the bond of Benjamin T. Higginbotham, as administrator of George Higginbotham, executed in 1859, in which Tilman. Hicks, the intestate of the appellee, and the donor or grantor of appellants, joined as sureties. A breach of the condition of the bond, in which the intestate of the appellee, and the donor or grantor of the appellants, would be. involved in liability, was attempted to be shown only by a settlement of the administration of Benjamin T. Higginbotham, the principal, not made by him, but made by his administrator after his death, and after the death of William S. Means, the donor or grantor. In addition, there was evidence of a decree rendered against the administrator of Tilman Hicks, in the Court of Chancery, at the suit of the administrator de bonis non of George Higginbotham, and proof of payment of the latter decree. Now, the bond of an administrator imports only a conditional liability upon him and his sureties. There is never a liability imposed upon the principal or his sureties, ripening into a debt, converting the bond into a cause of action, until it appears that the condition of the bond has been broken. Of that tact, essential to place the appellee in the relation of creditor, having a right, legal or equitable, to assail any transaction with William S. Means, there is no other evidence, than the record of the settlement made by the administrator of Benjamin T. Higginbotham, after the death of Means, and the decree in the Court of Chancery against the administrator in chief of Tilman Hicks. The bond is merely an instrument, or adminicle of evidence. By itself, it imports only a conditional liability; and without averment and proof of a breach of the condition, it will not create a

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