ment and judgments rendered thereon declared fraudulent. There was a decree for complainants, and defendants appeal. Reversed.

G. L. Comer and Graham & Steiner, for appellants. A. H. Merrill, for appellees.

TYSON, J. On the 14th day of April, 1898, the appellants sued out writs of attachment in the circuit court of Barbour county against L. Manasses, as executor and trustee of the estate of J. Manasses, who was doing business in Clayton, upon the ground that the defendant had money, property, and effects liable to satisfy his debts, which he fraudulently withheld, and caused them to be levied upon a stock of goods, wares, and merchandise owned by the defendant. There were judgments in favor of the plaintiffs in these suits, and the property levied upon was condemned to their satisfaction. Under these judgments the property was sold, and the proceeds applied to their payment and extinguishment. On the 19th of July, 1898, the appellees filed their bill in the chancery court seeking to have the writs of attachment and the judgments declared fraudulent, and a decree rendered against the appellants for so much of the money received by them from the proceeds of the sale of said property as may be sufficient to pay their debts against L. Manasses, the insolvent debtor. The sole ground of attack made by the bill upon the attachment proceedings is that the writs were collusively sued out. The only question presented by the record is whether the evidence satisfactorily proves that there was collusion between Lobman, who was the representative of the firm of Steiner & Lobman, and Moritz & Co., and Manasses, the insolvent debtor, in the suing out of these attachments. The only witness who testifies to this fact is L. Manasses, the insolvent debtor.

He says:

That for several years prior to the suing out of the attachments he had been doing a mercantile business in Clayton, and for some time prior thereto his business was in a failing condition. That the only property he owned was his stock of merchandise, which he says was worth about $6,000, and that he owed $8,000 of debts. That on the 13th day of April, 1898,-the day before the suing out of the attachments,-he went to Montgomery to see Steiner & Lobman, his largest creditors, to try to arrange with them "to pull him through," and, if he failed to get their assistance, it was his intention to make a general assignment. That he saw Lobman, of the firm of Steiner & Lobman, and told him that he wanted to get some money and goods; that he was "in a tight place in his business"; that some of his bills were due, and he could not pay them, and needed some help, and, if he could get help, he "would bridge over, and come out all right"; that if he could not get this help he wanted to make a general assignment for the bene

fit of all his creditors. That Lobman told him he would go and advise with his attor ney, which he did. When Lobman came back, Manasses says he told him that his attorney advised him that the best way was to sue out an attachment, and if he (witness) made a general assignment he would have nothing left, and Steiner & Lobman would not get their debt in full; but if they attached the stock of goods they would get the full amount of their debt, and that he (Manasses) would have something left. Lobman said he would buy in the stock of goods at the attachment sale, and sell them back to him in some other person's name on a credit. He agreed to this. Lobman then told him not to let any person in Montgomery see him; that they might suspect what he was there for. Accordingly he (witness) stayed in Steiner & Lobman's store all day until 4 o'clock in the afternoon. That Lobman prevented him from seeing B. B. Warren & Co., to whom he was indebted, and kept him from telling them of the agreement between them. In order to consummate this agreement, Lobman was to go to Clayton with him that afternoon via Midway, but afterwards said that he (Lobman) had seen his attorney, who advised him not to go to Clayton with witness, as that would look like collusion. So it was finally agreed upon that witness was to return to Clayton via Midway, and Lobman to go by the way of Ozark, another and different route. On the next morning (April 14th) witness and Lobman met in Clayton, and Lobman told him that he would go and see his attorneys there, and decide what he would do. ness said to him that he was still considering making an assignment for the benefit of all his creditors. About 2 o'clock of that day Lobman, he says, sent for him to come to the banking house of the Clayton Banking Company, but not to come through the front door. Witness, however, does not remember who it was brought him this message. That he was too busy at that moment, and did not go. That afterwards Lobman himself came to him at his store, and told him to come over to the banking house, but to come through the back door. That he went to the bank, and Lobman met him there. That Lobman said to him, "It will not do to make an assignment, and the best thing, and the only way, is to make an attachment." He said he preferred an attachment because the expense would not be much, and he was doing this for witness' benefit. That he would get his money, and would immediately sell the stock back to him on a credit, as he had promised in Montgomery. He (witness) agreed to it a second time. He testifies further that Lobman told him, after the attachment was levied, to see after the inventory of the goods, and to see to it that the stock did not inventory more than $3,000 or $3,500, so Lobman could buy it. That Lobman was to sell it back to him for the amounts due by him to the firm of Steiner & Lobman, Clayton Banking

Wit

Company, and Moritz & Co. That Lobman was present at a sale of the goods, and bid nearly as much as $3,000, but that they were bought by one Bell. That Lobman said to him, while the bidding was going on, that he believed he would let Bell have the goods, and that he could furnish him (witness) with a new stock of goods. Witness also testified that no grounds of attachment existed whatever. On cross-examination this witness testified that the train arrived in Montgomery on April 13th, at 10:35 a. m.; that he went immediately to Steiner & Lobman's office; that he sat there five or ten minutes before beginning the conversation testified about; that Steiner, one of the members of the firm of Steiner & Lobman, heard all that was said between him and Lobman; that he had been in Steiner & Lobman's office about one-half hour before Lobman went out, and that during that time neither Lobman nor Steiner did any writing; that the conversations he had with Lobman in the banking house of the Clayton Banking Company were in the presence of T. R. Parrish, the cashier of the bank, and that Parrish heard the agreement made by him with Lobman; that Parrish also attached his goods that day for a dept he owed the banking company, but had no understanding or agreement with him about the suing out of the attachment. The record discloses that one of the complainants in the bill is a son of the witness, to whom he testifies he is indebted in a large sum, to wit, $2,000. He cannot, therefore, be said to be a disinterested witness, and it is practically upon his testimony that the complainants must rest their case. Lobman and Steiner both swear that no such conversation was had in their place of business, and that no agreement or understanding whatever was had about the suing out of the attachments. Lobman's visit to Clayton on the 14th day of April, via Ozark, is fully explained by the letter written to his firm by Alston & Peach, of date April 12th, and his telegram in reply thereto on the morning of the 14th, which shows it was received by the telegraph company for transmission at 10:40,―manifestly prior to Manasses' arrival at their office. Lobman also contradicts Manasses in every detail as to what occurred in Clayton. Parrish does not corroborate Manasses as to the conversation which he swears was had between him and Lobman in his banking house on the afternoon of the day the attachments were levied. Parrish remembers no such agreement being made. He would be most likely to have remembered it had it occurred as testified to by Manasses, as his bank was interested in the attachment writs which were being sued out against Manasses on that very day. So we may say that Manasses is contradicted by him as well as by Lobman. He is also contradicted by Davie pointedly and unequivocally about another matter; and also by Judge Alston as to the circumstances under which he was permitted to retain the 28 So.-34

possession of the horse, dray, and furniture. It is plain that Manasses, in his testimony, attempted to make the impression that the possession of these articles by him was in pursuance of the fraudulent agreement which he said Lobman made with him prior to the suing out of the attachments. He also tries to create the impression that ParIrish heard and knew all about this fraudulent agreement. His willingness, and we might say his eagerness, to enter into a fraudulent agreement to become the beneficiary of a business to be conducted in the name of another, does not recommend him to our favorable consideration. While we recognize the importance of making it difficult for creditors who resort to fraudulent means to secure preferences over other honest creditors of their insolvent debtor to reap the benefit of their covinous devices, yet we are unwilling to stamp a transaction as such upon testimony so impugned by other witnesses as that of the witness upon whom the complainants rely in this case. The decree of the chancery court must be reversed, and one will be here rendered dismissing the bill. Reversed and rendered.

(126 Ala. 393)

FOSTER et al. v. BALLENTINE et al. (Supreme Court of Alabama. April 19, 1900.)

PARTITION-PLEADING SUFFICIENCY OF

COMPLAINT.

A bill for partition averring that the parties are tenants in common of certain described realty, title to which they derived as heirs at law of a certain decedent, alleging the shares to which each was entitled, and further averring that such realty was devised by such decedent to his daughter for life, remainder to her children on a certain contingency, on failure of which the realty reverted to the decedent's estate, and descended to them as heirs at law, is sufficient to show that such parties were invested with the title to such realty as tenants in common.

Appeal from chancery court, Madison county; William H. Simpson, Chancellor.

Bill by Susan A. Foster and others against James A. Ballentine and others. From a decree sustaining demurrers to their complaint, complainants appeal. Reversed.

The bill in this case was filed by the appellants against the appellees, seeking the partition of certain lands specifically described in the complaint. The averments in the bill and the amendment thereof are sufficiently set forth in the opinion. To the bill as amended, the defendants demurred upon the following grounds:

"(1) Said bill as amended does not state facts showing that the complainants are entitled to any interest or estate in the lands mentioned in the bill, but states merely the opinion or conclusion of the pleader on that subject.

"(2) Said bill as amended does not set out or allege the provision or provisions of the will of Samuel Watkins in reference to the land mentioned in the bill.

"(3) Said bill as amended does not sufficiently set out or allege the terms of the I will of said Samuel Watkins, deceased, in reference to the land mentioned in the bill to enable the court to determine what were the provisions or disposition of said will in reference to the lands mentioned in the bill."

On the submission of the cause upon the demurrers, the chancellor rendered decree sustaining them. From this decree, the complainants appealed, and assign the rendition thereof as error.

Cooper & Foster, Joseph H. Branch, and David A. Grayson, for appellants. R. 'W. Walker, for appellees.

HARALSON, J. Suit for partition of land in kind between tenants in common.

In an application for partition in the probate court, it is provided in respect to the contents of the application, that it "must set forth the names of all the persons interested in the property, their residence, if known, whether they are over or under twenty-one years of age, a full and accurate description of the property sought to be divided or partitioned, the interest of each person in the same, and the number of shares into which it is to be divided." Code, § 3163. It would seem, that a bill in equity for the same purpose, which answered the requirements of this section, would be sufficient. There is no need for greater particularity of averment to accomplish the same purpose in the one than in the other of these courts.

Mr. Freeman says, "So far as we are aware, it has never been held to be necessary in applying for partition, whether at law or in equity, to show any deraignment of the plaintiff's title.

* It is, there

fore, undoubtedly sufficient in a complaint for partition, in an ordinary case where no special redress is sought, to state the ultimate facts respecting the titles of the respective parties. If any issue is formed respecting those facts, such issue may be determined by the production of deeds and other competent matters of evidence, none of which need be specifically stated in the complaint. If, however, the complaint states the title of plaintiff in general terms, and then proceeds to disclose the proceedings by which he acquired his interest in the property, and such proceedings as stated are insufficient to vest him with any title, the complaint is insufficient." Freem. Co-Ten. 486. Appended to section 491, the author gives the form of a petition in such a case, embracing not more than our statute requires.

Knapp, Partit. p. 102, says: "In a petition for partition, under the statute, it is not necessary to set forth the rights and titles of the several tenants, at large, nor is it necessary to allege the seisin of the ancestor or the person from whom the parties derive title; but it is sufficient to state in general terms, that each tenant was seised of his part or share in fee, or as the case may be,

whether such seisin be acquired by inheritance or purchase." The constituent facts on which the petition is based, need not be averred, for these are merely probative. Spensley v. Manufacturing Co., 62 Wis. 549, 22 N. W. 574; Bradshaw v. Callaghan, 8 Johns. 558. In 3 Barb. Ch. Prac. 704, is found a form for petition, according to the New York rule, which directs that the bill or "petition must state, in as concise manner as possible, the rights and interests of the respective parties in the premises," etc., and the following averment of the source of title is given as being all that is necessary: "And your petitioner further showeth, that' the said J. G. obtained his title to one equal undivided share of the above-described premises by devise from his father W. G.," etc., and the same in general terms of the titles of the other parties.

In the case before us, the bill in section 3, -after setting out in the two preceding sections the names, residences, and ages of all the parties in interest, plaintiffs and defendants,-avers, "Complainants and defendants are joint owners in fee simple and tenants in common of the following described lands, situate in the county of Lawrence, state of Alabama" (describing them by their landoffice numbers). Section 4: "Orators and said defendants derive title to said property as heirs at law of one Samuel Watkins who died in the year 1835, seised and possessed of said lands." In section 7, the shares to which each of the tenants in common is entitled in the lands is carefully stated. In section 5 as amended, is the averment in general terms, that the lands described were given under the last will and testament of Samuel Watkins, to his daughter, Mrs. Elmira Swoope, during her life, the title to vest in such children of hers as should come of age or marry after the death of their mother; that none of her children came of age or married after her death, but all of them died many years before the death of their mother; that the contingent remainders created by said will lapsed, and that on the death of Mrs. Swoope, the said lands reverted to the estate of said Samuel Watkins, and descended to his heirs at law. It is also averred in section 6, that Mrs. Swoope died on the 1st January, 1889, and upon her death, the said lands descended to the parties to the bill, and vested in them as tenants in common. The prayer of the bill was for a division in kind.

The averments of the bill in respect to the deraignment of title, were, perhaps, quite unnecessary to give equity to the bill. But they are by no means improper averments, and were no more than statements of the evidence of complainants' and defendants' title, showing that they are tenants in common of the property sought to be divided. Nor were these general averments of the sources of title wanting in that degree of fullness and clearness required in a bill of this character, as questioned by the demur

1. Plaintiffs were assignees of a judgment recovered by the receiver of a bank on bills and notes. Pending the action the receivership was terminated, but the action went to judgment in the name of the receiver. Code, § 28, provides that all actions shall be in the name of the real party in interest, except that actions on bills, and notes payable at a definite place, and other commercial instruments, may be in the name of the person having the legal title. Held, that the discharge of the receiver did not cause the action to abate, so that the judgment would be void, since it would be presumed, in support of the judgment, that the bills and notes were within the exception of the statute.

2. Under Code, § 28, providing that actions shall be in the name of the real party in interest, an action by a trustee is in the name of the real party in interest, since he is entitled to the money, and can discharge the debtor, though the money, when collected, is held for the benefit of another.

3. Where the assignor and assignees of a judgment join in a creditors' bill thereon, it is not necessary that the bill should allege a formal transfer of the judgment, nor that such transfer be proved.

4. In a creditors' suit by judgment creditors of the A. T. & I. Co. against the company and H., the bill averred that H. was a director and treasurer of the company, and that he sold his stock, directly or indirectly, to the company, knowingly receiving assets of the corporation in payment therefor. Held, that a demurrer for uncertainty. in that the bill did not allege what assets were received by H., nor when, was not well taken, since the bill need not allege evidential facts.

5. Where a stockholder transfers his stock to the corporation directly or indirectly, knowingly receiving corporate assets therefor, it is unimportant, in a creditors' suit on a judgment against the corporation, whether the corporation was solvent or not at the time of the transfer, since in either case such transfer is void as against creditors.

6. Where defendant, the treasurer and a director of the A. T. & I. Co., sold his stock in the company to W. and S., taking their notes in payment, which notes were paid by checks, some drawn by "J. W. W., Pres.," and others by "J. W. D., Vice Pres.," defendant knowing these persons to be officers of the company, he is chargeable with knowledge that he was receiving funds of the corporation in payment for his stock.

7. The receiver of a bank recovered a judg ment against the A. T. & I. Co. on unpaid drafts of the company. The judgment was assigned to plaintiffs for the benefit of the bank stockholders, and plaintiffs brought a creditors' suit against H., alleging that H., who was a director and treasurer of the A. T. & I. Co.,

transferred his stock therein to the company in payment therefor. H. answered, denying that he transferred his stock to the company, or that he knowingly received company assets in payment therefor, and alleged that he transferred his stock to W., the president of the company, who transferred the same to the bank as collateral security for the loan on which the judgment was obtained by the receiver, and that the bank transferred it to plaintiffs, who, with full knowledge of the facts, still hold the stock without having offered to return it. Held, that plaintiffs were not estopped from recovering against H., since the facts constituting an estoppel must be directly and unequivocally alleged, and H. cannot have the benefit of his avoidance where he does not confess the facts.

8. Defendant H. was a director of the A. T. & I. Co., and, though elected treasurer, performed none of the duties of the office, but delegated them to a clerk in the office of W., the president. H. allowed W. to draw on him as treasurer for large amounts when there were no funds in his possession, the drafts being met at maturity by the proceeds of other like drafts. H. sold his stock in the company ostensibly to W. and to S., another director, entirely under W.'s control, taking their notes therefor, which notes were, to H.'s knowledge, partly paid with company funds. W. and S. were both insolvent, and the former deeply indebted to the company. The notes of W. and S. were entered on the books of the company as a corporate liability, and the purchase of the stock showed on the credit side of the company's cash book. H. and W. both testified that the sale was bona fide to W. and S., and not to the company. Held, that H. was chargeable with knowledge that the sale of the stock was really to the company, since H., as treasurer, was bound to know of the entries on the company's books, which it was his duty to keep, and this presumption, supported by the other evidence, was not overcome by the testimony of H. and W.

Appeals from city court of Montgomery; A. D. Sayre, Judge.

Action by J. L. Hall and L. B. Farley, as trustees, against Fox Henderson and others. From a judgment in favor of plaintiffs, both plaintiffs and defendants appeal. Judgment affirmed on appeal of defendants, and reversed on plaintiffs' appeal.

On June 23, 1896, J. L. Hall and L. B. Farley, as trustees, filed their bill of complaint against Fox Henderson, the Alabama Terminal & Improvement Company, and the Farley National Bank. In this bill it was averred that the Alabama Terminal & Improvement Company, a corporation under the laws of Alabama, and doing business in said state, opened an account with the Farley National Bank on March 6, 1890, and commenced obtaining loans and discounts from such bank; that this business continued until August 21, 1891, when the Alabama Terminal & Improvement Company was indebted to said bank in the sum of $151,000; and that the failure of said Alabama Terminal & Improvement Company to pay such indebtedness caused the suspension of said Farley National Bank on the day just named. Thereafter the comptroller of the currency of the United States, in pursuance of the laws of the United States, appointed one H. M. Hall as receiver of said bank, authorizing him to take possession of the books

and assets of every kind of said bank, and collect all debts due and claims belonging to it; and said H. M. Hall accepted such appointment, took possession of the books, assets, etc., of said company, and thereafter, on January 25, 1892, instituted a suit as such receiver against the Alabama Terminal & Improvement Company to recover the indebtedness of said company to the Farley National Bank. On October 23, 1892, a judgment was rendered in said suit against said Alabama Terminal & Improvement Company for the sum of $117,891.47; the debt having been reduced by payment made or bill given for a portion thereof during said suit. Execution was duly issued upon this judgment, and was returned by the sheriff "No property found," and said judgment remained in full force and effect and wholly unsatisfied at the time of the filing of said bill. On February 15, 1892, the comptroller of the currency discharged the receiver, ordering the restoration of the Farley National Bank to the possession of its books and assets, and authorizing it to resume business. Thereafter, on February 23, 1892, the said bank assigned and transferred to the complainants, J. L. Hall and L. B. Farley, as trustees, the said debt of the Alabama Terminal & Improvement Company. In the organization of the Alabama Terminal & Improvement Company the defendant Fox Henderson subscribed for 300 shares of its capital stock, amounting to $30,000, and made his promise in writing for the payment thereof. The payment of the note of Henderson which was given for a subscription of $30,000 to the capital stock of the Alabama Terminal & Improvement Company was conditioned upon the completion of the Alabama Midland Railroad from one of the southern terminal points of said road to a point within one mile of the center of the city of Montgomery on or before the 1st day of October, 1890, and the publication of the decision of the board of directors of such completion. This condition was complied with, and the Alabama Midland Railroad was completed as stipulated. It was then averred in the bill that the complainants were informed and believed that Fox Henderson claimed that, after paying for his stock in the Alabama Terminal & Improvement Company, he sold and transferred it to one J. W. Woolfolk and A. C. Saportas. J. W. Woolfolk was president and general manager of the Alabama Terminal & Improvement Company, and A. C. Saportas was a director thereof, and it was averred in the bill that he was under the influence and control of the said Woolfolk in reference to the management of the business of said Alabama Terminal & Improvement Company. The management of the business and control of the affairs of the Alabama Terminal & Improvement Company was entirely in the hands of J. W. Woolfolk. This fact was known to Fox Henderson, who was himself a director and treasurer of said Alabama Terminal &

Improvement Company, and who, it was averred in the bill, co-operated with said Woolfolk in the management of said compa ny. It was then averred in the bill that the defendant Fox Henderson, as treasurer and a director of the Alabama Terminal & Improvement Company, well knew that Woolfolk was at the time of the transfer of the former stock to him largely indebted to said company for his own subscription and otherwise, and that said company was largely indebted, and hastening to insolvency; that said Henderson well knew that Woolfolk was at that time carrying out a scheme, and was drawing a large amount of the assets of the company by buying up at par in the name of said company large amounts of the stock of the subscribers to the capital stock, and paying for the same with the assets of the company, without any authority whatever, the persons thus favored by said Woolfolk being the brothers, relations, partners, and neighbors of the said Fox Henderson. The bill then avers as follows:

"That the said Woolfolk, as president and general manager of the said company, having incurred large debts for said company, and being unable to use to advantage the assets in the hands of said company, owing to the financial condition of depression in the country, proposed to a number of subscribers for the capital stock of said company residing at Troy, Alabama, among whom were brothers, relatives, partners, and acquaintances of said Fox Henderson, and to the said Fox Henderson himself, that they could get rid of their stock in said company, and avoid liability therefor, and at the same time provide 1or his present need of money, by paying in cash their subscription for stock, and by his buying the stock thus paid for in the name of and for the company, paying for the same in assets of said company in his hands at a certain price,-generally in bonds of the Alabama Midland Railroad at eighty-five cents on the dollar, in his hands, belonging to said company. This plan the said Woolfolk carried out with a number of the said subscribers, of all of which the said Fox Henderson was well informed. That in the case of the said Fox Henderson, on account of his relations to said company, or for some other reason, for his supposed security it was arranged that he should pay up his stock subscription of thirty thousand dollars in full, and that J. W. Woolfolk and the said Saportas should buy his stock, and execute to him their notes, each for ten thousand dollars, due, respectively, at 30, 45, and 60 days from date, and that these notes should be charged up to and paid by said Ala. Ter. & Imp. Co., as a purchase by it of said stock. And so orators aver the said plan was carried out. The said Woolfolk and Saportas gave their three notes for the amounts, and for the time above stated, for the stock, the said Henderson retaining the stock as collateral security for their payment. and on the same