Lightfoot v. Rupert & McClelland

38 Ala. 666

• Court: Supreme Court of Alabama
• Decided: January 15, 1863
• Status: Published

Opinion

A. J. WALKER, C. J.

The deed of trust, which is not assailed for fraud, vested in the trustee the assets conveyed, for the purposes therein specified. Those purposes were, the conversion of the assets into money, and the payment first of certain preferred creditors, and afterwards the distribution of the balance among the creditors generally. The answer of the garnishee shows, that the preferred debts have been paid, that a balance remains in his hands, and that it is insufficient to satisfy the' unpreferred creditors of the grantor. The purposes, therefore, for which the trust was created, were not accomplished; and after the execution of the trust, there neither is, nor will be, a surplus in the hands of the trustee. The trustee is, therefore, not indebted to the plaintiffs’ judgment debtor in any sum ■ which could be recovered by action at law, and no judgment could properly be rendered against him as a garnishee. Price v. Masterson, 35 Ala. 483.

If the answer is objectionable, on account of its failure to disclose the names of the creditors who were to be paid from the trust fund, it was no reason why a judgment against the garnishee should be rendered on the answer. Before a judgment can be rendered on an answer, there must be a distinct admission of a debt due, or to become due. — Price v. Thompson, 11 Ala. 875 ; Powell v. Sammons, 31 Ala. 552. The answer here contains no such admission.

Reversed and remanded.