Allen v. Pierce

50 So. 924 | Ala. | 1909

DOWDELL, C. . J.

The bill in this case is by a judgment creditor, after a return of “No property found” on execution, to subject assets of the judgment debtor, in the hands of an alleged fraudulent grantee, to the payment of the judgment. The conveyance assailed is one by the husband to the wife, the expressed consideration being love and affection. The conveyance is a voluntary conveyance, and in such a case it is not necessary to allege and prove a fraudulent intent as to the grantee. It is sufficient to show such intent as to the grantor. — McFadden v. McFadden, 134 Ala. 342, 32 South. 719; McGhee v. Imp. & Trad. Nat. Bank, 93 Ala. 196, 9 South. 734; Seals v. Robinson, 75 Ala. 371; Pickett v. Pipkin, 64 Ala. 520.

A creditor whose debt is secured by a mortgage is not confined, in his remedies for the collection of his debt, to the enforcement of his security, though the same may be ample to that end. As against this debtor the mortgagee of land has three remedies, any one of which he may pursue, or, as for that matter, he may pursue all three at one and the same time. He may file his bill in equity to foreclose the mortgage, sue in ejectment for the recovery of the land,and sue on his debt at law. — - Buval's Heirs v. McLoskey, 1 Ala. 708; Roper v. McCook, 7 Ala. 323; Halfman v. Ellispn, 51 Ala. 549; Tucker v. Adams, 52 Ala. 258; Micou v. Ashurst, 55 Ala. 607; Scott v. Ware, 65 Ala. 183. Here the creditor, as lie has the right to do, is pursuing' the last of the above-named remedies, and against which a grantee in an alleged fraudulent conveyance by the debtor has no right to complain.

It is stated in the bill that the mortgage security held by the complainant was given for the debt of the husband and upon the separate estate of the wife. Such a mortgage is void (Code 1907, § 4497; Richardson v. Stevens, 114 Ala. 238, 21 South. 949, and other cases cited in brief of counsel) ; and for this reason the complainant would be justified in abandoning such security and in pursuing the remedy adopted in the present instance.

The averments in the bill that the debtor, subsequent to his voluntary conveyance to his wife, paid off and discharged existing liens on the conveyed property, do not render the bill demurrable. Such statements are in keeping with the allegations of intent to defraud. While the debtor had the right to apply his money to the payment of those creditors who held liens upon the property conveyed by him to his wife, the result of which was to enhance the value of the estate in the wife by the discharge of the liens, yet in equity and good conscience this could not be permitted at the expense of his other creditors. In principle there can be no difference between this and the per-' mitting of the debtor to use his funds in erecting a building or other improvement upon the land of his wife, in fraud of his creditors.

It is immaterial what consideration the complainant paid for the debt sued on. In this respect he stands in the shoes of his transferor.

The bill alleges a scheme on the part of the debtor to defraud future creditors in the making of the conveyance assailed. If this is true, the conveyance is void as to both future and existing creditors.

In its last analysis, the bill is nothing more nor less than one by a creditor to set aside a fraudulent conveyance, and to subject the property conveyed to the payment of debts. The demurrers, in our opinion, are not well taken. The chancellor committed no error in overruling them, and his decree will be affirmed.

Affirmed.

Simpson, McClellan, and Mayfield, JJ., concur.