Opinion
6 Div. 935.
June 18, 1927. Rehearing Denied October 20, 1927.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Curtis, Pennington Pou, of Jasper, for appellants.
A trustee in bankruptcy cannot prosecute a suit without first having obtained authority therefor. 1 Fed. Stat. Ann. p. 641; Miller v. New Orleans, 211 U.S. 496, 29 S.Ct. 176, 53 L.Ed. 300. The bill should allege that claims of creditors have been filed and allowed against the estate and that the trustee has not sufficient assets of the estate with which to pay the claims. McKey v. Smith, 255 Ill. 465, 99 N.E. 695; Drew v. Myers, 81 Neb. 750, 116 N.W. 781, 17 L.R.A. (N.S.) 350; Lester v. Barclay, 213 Ala. 515, 105 So. 808; Crary v. Kurtz, 132 Iowa, 105, 105 N.W. 590, 109 N.W. 452, 119 Am. St. Rep. 549; 3 R. C. L. 300. The bill should allege facts constituting fraud; the conclusion that the conveyance was made with fraudulent intent is not sufficient. McCrory v. Donald, 192 Ala. 312, 68 So. 306; McKey v. Smith, 255 Ill. 465, 99 N.E. 695; Little v. Sterne, 125 Ala. 609, 27 So. 972. Pleading is as essential as proof, and proof without pleading is of no effect. Manchuria S. S. Co. v. Harry G. G. Donald Co., 200 Ala. 638, 77 So. 12.
L. D. Gray, of Jasper, for appellee.
A trustee may sue in a state court without first obtaining leave of the court appointing him. Cartright v. West, 155 Ala. 619, 47 So. 93. Adjudication in bankruptcy is sufficient evidence of debts to support bill by the trustee to avoid a fraudulent conveyance. Booth v. Bates, 215 Ala. 632, 112 So. 209. The allegations of fraud in the bill are sufficient. Lamar Rankin D. Co. v. Jones, 155 Ala. 474, 46 So. 763.
The trustee did not have to obtain the consent of the bankrupt court to file the present bill in the state court. Cartright v. West, 155 Ala. 619, 47 So. 93. The statute and authorities referred to by counsel for the appellant relate to suits begun by the bankrupt and the right of the trustee to prosecute them to a finish, and not to suits originally commenced by the trustee as in the present instance.
Of course, fraud cannot be properly charged by way of conclusion merely, but we think the present bill sets up sufficient facts to meet the requirements of the rule. Moody v. Moody (Ala. Sup.) 112 So. 752. Whether the bill had to charge that the land conveyed did not constitute a part of the homestead, or whether or not the fact that it did was defensive matter, matters not, as the bill expressly avers that the land in question was no part of the homestead.
Ante, p. 156.
The bill charges that the conveyance was fraudulent, and this was sufficient as against creditors then existing or existing at the time of the bankruptcy, and the adjudication of bankruptcy relieved the complainant from averring and proving that the claims had been proved and allowed. Booth v. Bates, 215 Ala. 632, 112 So. 209.
The decree of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.