Brock & Spight v. Oliver

43 So. 357, 149 Ala. 93, 1907 Ala. LEXIS 306

• Court: Supreme Court of Alabama
• Decided: March 2, 1907
• Status: Published

Opinion

ANDERSON, J. —

The sole purpose of this bill is to have certain payments made by the bankrupt declared preferential and void under the bankrupt act. The chancery court, is without jurisdiction’ to grant relief against a mere preference at the instance of one who has not exhausted his remedy at law. — Redd v. Wallace, 145 Ala. 209, 40 South. 407. The hill does not bring this case within the influence of section 818 of the Code of 1896, as it in no sense seeks to set aside a fraudulent conveyance or transfer. It does aver that a mortgage was fraudulently given, but also shows that the mortgage was fully paid and discharged before the bill was filed, and is therefore functus officio.

The chancellor erred in not dismissing the bill for want of equity, and the decree is reversed, and one is here rendered dismissing the bill.

Reversed and rendered.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.