Allen v. Riddle

141 Ala. 621 | Ala. | 1904

DOWDELL, J.

When this cau-r was here on a former appeal, 129 Ala. 562, being then styled as the Southern Home Building & Loan Association v. Riddle, the charge of usury in the loan by the Association to Sallie B. Allen, which the mortgage in question was executed by Sallie B. and James B. Allen to secure, was was not denied, the contention by counsel for appellant being that the question of usury was immaterial under the authorities of Loucheim v. First National Bank, 98 Ala. 521; Harris v. Russell, 93 Ala. 59, and Howell v. Carden, 99 Ala. 100, but it was then held that the principle stated in these cases were not applicable to the case at bar. The decree of the chancellor having been reversed for other reasons there stated; after remandment of the cause, the. Association amended its answer by denying tlie allegations of the bill as to usury, and further setting up the fact that the contract of loan by the Association to the said Sallie B. Allen was one, which by its conditions and terms Avas to be performed in the State of Georgia, and by the laws of that State Avas free from any taint of usury. In this respect the issues as now presented are different from Avhat they Avere on the former appeal. The case as made by the bill Avas thaf James B. Allen AAras indebted to the complainant, Riddle and, Avhile so indebted, procured a conveyance of certain real estate, he furnishing the purchase money for the same, to be made to his wife, Sallie B. Allen, which was afterwards conveyed to the Southern Home Building & Loan Association to secure an indebtedness of the said Sallie B. Allen; and the bill further charges that the Association had actual notice of the fraudulent intent of James B. Allen, in procuring the conveyance of the property to be made to his wife. The bill also alleged that said Association Avas not entitled to protection, as a purchaser for value,.for the1 reason, that the debt, Avhich the mortgage Avas given to secure, Avas infected with usury. The answer of the Association denies any lcnoAvledge or notice of the alleged fraud, and as amended also, denied the charge of usury. The loan Avhich constituted the consideration of the bond, and Avhich the mortgage to the Association was given to Secure Avas not disputed. It is shown by the record that Bailie B. Allen Avas a stockholder in, and member of, said Association, and as such obtained the .loan in question. It is also shoAvn that she held stock and procured the loan under the by-laws, rules and regulations of the Association. Section 8 of the by-laAvs, provides; “All money due from members to the Association, or from it to the members, shall be payable at the home office, in Atlanta, Georgia.” And section 15, provided as follows: “All contracts made by or with this Association shall be deemed to have been made at the home office, in Atlanta, Fulton county, Georgia.” Furthermore, it is stipulated. in the bond in question, that Sallie B. Allen shall pay to the Association in clues on her stock, and the prer inium and interest on her loan, as provided in the bylaws, rules and regulations of the Association. From this it would appear that the contract of loan was to be performed in the State of Georgia, and by the laws of that State to be determined whether or not the contract

is usurious. — Farmers Building & Loan Association v. Kent, 131 Ala. 246; Pioneer Savings & Loan Association v. Nonnemacher, 127 Ala. 521; Hays v. Southern Home Building & Loan Association, 124 Ala. 663; Bedford v. Eastern Building & Loan Association, 181 U. S. 227. It was shown by the duly accredited reports of the de cisions of the supreme court of Georgia, which were introduced in evidence, that the contract before us, under the laws of that State was not an usurious one. There is no pretense here, that the contract was made to- be performed in another State as a shift or device to avoid the usury laws of this state, on the contrary the contention was, and is, that the contract is an Alabama contract, and the chancellor so held, but we think, under the authorities cited above, he was in error in so holding.

The remaining question is, whether it was shown as charged in the bill that the Association had notice of the fraudulent intent of James B. Allen in procuring the conveyance of the land to be made to his wife, which was afterwards mortgaged by her to the Association, he joining with his said wife in the mortgage.

The rule is, that where the payment of a valuable consideration is shown, the burden is cast upon the complaining creditor to prove the existence of a fraudulent intent, and that such intent was known to the grantee of the conveyance assailed. — Hodge v. Coleman, 76 Ala. 103; Shealey v. Edwards, 75 Ala. 411; Lipscomb v. McClellan, 72 Ala. 151.

We are of the same opinion now, that we entertained on the former appeal as to the character of the transaction in which the conveyance of the land was made to Sallie B. Allen, that is to say, that the evidence sufficiently warrants the conclusion, that at the time of said conveyance James B. Allen was insolvent, and that he furnished the consideration and procured the deed to be made to his wife, and this with a fraudulent intent as to his creditors. But there is still another question— does the complainant show the Association, at or before the time of making the loan to Sallie B., the alleged fraudulent grantee, had notice of said fraudulent transaction and intent? The bill as last amended alleged that F. A. Randolph was the local attorney of the Association, at New Decatur, Alabama, and was required to make an abstract of the property before the loan was made, and that in making such abstract he ascertained that judgments had been rendered against James B. Allen, and that when he ascertained these facts he was acting as attorney for said Association, and all this for the purpose of fixing knowledge or notice on the Association. The Association in its answer to the bill as amended, denied these allegations, and denied that Randolph was ever its attorney, and further alleged in such answer that the Association had no information that James B. Allen had been embarrassed and was insolvent, either at the time the1 title was acquired by Sallie B. Allen, or at the time the said loan was made by the Association to her. No attempt was made to prove these allegations as made in the last amendment to the bill. There is absence of any and all proof which would charge the Association with notice of the financial condition of Jas. B. Allen. There is no evidence either to show that an abstract of title was made, or, if it was made, that the abstracter made any search of the record of the circuit court to see if any judgments were open against him. The title to the land embraced in the mortgage to the Association was in Sallie B. Allen, and it is not shown that the name of James B. Allen appeared anywhere in the chain of title, and therefore, there was no apparent reason for making any investigation concerning his financial condition. As was said in the case of Thames v. Rembert, 63 Ala. 561, “Fraud is never presumed, but must be proven by the, party asserting it, and it will not be imputed, when the facts and circumstances, from which it is supposed to arise, may reasonably consist with honest intentions.” And in Harrell v. Mitchell, 61 Ala. 270, it is said that fraud “must be proved by clear and satisfactory evidence, and when a transaction is susceptible fairly of two constructions, the one which will support and free it from the imputation of impurity of intention will be adopted.” The evidence' is not sufficient to warrant or authorize the conclusion that the Association had notice of the alleged fraud by which Sallie B. Allen acquired title to the land, and the burden of proof being on the complainant to show this, it follows that the complainant it not. entitled to relief on this phase of the case.

Our conclusion is that the chancellor erred in the decree rendered as to the1 appellant Association, and this decree will be reversed, and a decree here rendered dismissing the bill as to the respondent Association.

Reversed and rendered.