
    QUARLES vs. GRIGSBY.
    [CREDITOR'S BILL AGAINST FRAUDULENT GRANTEE OF DECEASE!! DEBTOR.]'
    1. When creditor may come into equity against fraudulent .grantee of deceased debtor. A judgment creditor, not baying exhausted bis legal remedies, cannot come into equity, to subject property fraudulently conveyed by the debtor in bis lifetime, without alleging and proving a deficiency of legal assets: if bis bill shows on its face that, although the debtor’s estate has been reported and decreed insolvent, there are outstanding legal assets which never came to the possession of the administrator, it is without equity.
    Appeal from the Chancery Court of Marengo.
    Heard before the Hon. "Wade Heves.
    This bill was filed by Samuel Quarles, the appellant, against James B. Grigsby, Jr., Edwin A. Glover, and John N. Ransom, as administrator of James B. Grigsby, deceased; and sought to subject to the satisfaction of a judgment, obtained by complainant at the spring term, 1843, of the. circuit court of Perry county, against said Ransom, as administrator of Grigsby, certain slaves which were alleged to have been fraudulently conveyed by said decedent to said James B. Grigsby, Jr., who was his son, and to be in the possession of said Glover, as guardian of said James B. Grigsby, Jr. The decree of the chancellor, dismissing the bill for want of equity, is the only matter assigned as error.
    
      ¥m. M. BROOKS, for tbe appellant.
    — It was not necessary to sue out an execution on plaintiff’s judgment, to entitle Mm to tbe aid of a court of equity against a fraudulent grantee. A judgment creditor may file sucb bill at any time. Tbe bill alleges, that all tbe assets in tbe bands of tbe administrator, against whom tbe judgment was rendered, bad been fully administered. An execution on tbe judgment could uotbave been levied on tbe slaves sought to be subjected, wbieb bad never come to tbe possession of tbe administrator, but were in tbe possession of tbe fraudulent grantee. — -'Weir v. Davis & Humphries, 4 Ala. 442; P. & M. Bank v. "Walker, 7 Ala. 926; Dargan v. "Waring, 11 Ala. 988.
    LoMAX & Priítce, contra.
    
    — The plaintiff was not entitled to tbe aid of chancery, until be bad exhausted bis legal remedies by a return of nulla bona on an execution. Pbaris v. Leachman, . 20 Ala. 662; Roper v. McCook, 7 Ala. 318; 4 Johns. Cb. 671, 682; 2 ib. 283; 6 Gill & John. 424; 4 Munford, 539. Tbe report and decree of insolvency does not, as against Grigsby, establish tbe insolvency of tbe estate. Moreover, tbe bill admits that many valuable slaves, of wbieb tbe intestate died possessed, and only a portion of which are in Grigsby’s possession, never came to tbe bands of tbe administrator. By not pleading to tbe action, the administrator admitted assets, and was therefore individually liable. — 2 Porter, 236; 3 Stewart, 285.
   STONE, J.

— The bill in this case was dismissed by tbe chancellor, for want of equity; and hence tbe record contains nothing but tbe bill, its exhibits, and tbe decree of the chancellor. No reason is given in tbe decree for tbe judgment of tbe court; but several reasons are here urged in support of it. "We will notice but one.

Tbe bill alleges, that tbe debt of Grigsby was reduced to judgment against Ransom, the administrator de bonis non, in tbe year 1843; and there is no averment that any execution was ever sued out on that judgment. The bill further alleges, that after that time, (bow long after we are not informed,) Ransom reported the estate insolvent; and that on that report the orphans’ court declared it insolvent. The bill further avers, that “ after exhausting all the effects which came to the possession of said administrators, or either of them, and after deducting the distributive share of your orator as allotted to him under the decree of said orphans’ court,” there remained, and still remains, due to complainant a large balance. The bill nowhere charges that there is not property subject to levy under execution, if complainant were to sue out such final process on his judgment. For aught that appears on the face of the bill, there may be property subject to levy, which is amply sufficient in value to pay off the complainant’s demand; and yet that property may never have come to the possession of said administrators. So far from negativing this view, the bill expressly charges, that the “ intestate, at the time of his death, was possessed of divers valuable negro slaves, which never came to the possession of said administrators or either of them, and were not in any manner applied in payment of the debts of said intestate.”

It may be urged in answer to this, that the slaves claimed by James B. Grigsby, Jr., and which, are sought tó be condemned by -this bill, were placed beyond the reach of the administrator by the deed of the intestate, executed in 1836. The correctness of this position may be conceded without affecting the result of this case.— See Pharis v. Leachman, 20 Ala. 662; Watts v. Gayle & Bower, ib. 817, and authorities cited. The bill does not aver, that all the “valuable negro slaves” owned by intestate at the time of his death, and which have not been “applied in payment of the debts,” are in this condition. The charge in the bill is, that “James B. Grigsby, Jr., a son of said intestate, at or about the time of the death of said intestate, seized and took into possession, either by himself or through his agents and friends, a certain number thereof, named as follows,” &c. The clear import of this language is, that there were slaves of the intestate, not reduced to possession by the administrator, and which were not seized or taken into possession by James B. Grigsby, Jr., or his agents or friends. Ill what condition these slaves are held — whether under any, and what description of claim, we are wholly left to conjecture. Conceding the bill to be true in all its parts, these slaves may be free and unincumbered, and subject to levy under execution against the administrator de bonis non.

The bill fails to make a case for equitable interposition; and the decree of the chancellor is affirmed. — See State Bank v. Ellis, at the January term, 1857.

Let the appellant pay the costs of this appeal.  