59 So. 442 | Ala. | 1912
This is a general creditors’ bill attacking and seeking to have set aside certain described conveyances as having been made in fraud of the rights of complainants as creditors of the respondent A. B. Hall, the grantor in the conveyances assailed. Demurrers were interposed to the bill, and to partic
The demurrers directed against paragraphs 21, 26 and 27 of the bill challenge their sufficiency in averments of actual intent to defraud, and of any injury done the complainants as a result of the fraud. The theory of these several sections is that the grantee, in withholding the deeds from record, was guilty of a fraud, in connection with the other matters stated, which avoided the deeds. There is no pretense but that the deeds were valid in their inception, and their validity is assailed alone on charges relating to the subsequent conduct of the grantee in concealing or withholding the deeds from record. It is not averred that the complainants suffered any injury from the grantee’s conduct in withholding the deeds from record.
The bill must show with clearness matters essential to complainant’s relief, and must not be made to depend upon inference.: — Seals v. Robinson, 75 Ala. 363.
There must have been an actual intent on the part of the grantee to, at least, aid in defrauding subsequent creditors of the grantor by withholding the deeds from record, and such fraudulent intent should be averred and not be left to rest in inference. As xvas said in Bliss v. Anderson, 31 Ala. 625, 70 Am. Dec. 511: “But the inference of the intent would be but the inference of one fact from another. It is not sufficient, in chancery pleadings, simply to aver the evidence from which a required fact might be inferred, although the evidence itself, if uncontradicted, and not overcome by opposing proof, might be sufficient to induce a chancellor or a jury to find the fact from it.” — citing Knight’s
As we have said, there is nothing in these several paragraphs of the bill assailing the deeds as fraudulent in their inception. Their invalidity is dependent upon charges of subsequent fraud in withholding them from record. While paragraphs 21 and 26 allege that the deeds were intentionally withheld- from record for the purpose of maintaining the credit of Parker & Co., they do not in terms aver it was with fraudulent intent and for the purpose of creating a false credit. We are of the opinion, however, that the charge of fraud is necessarily implied in the facts stated, as the credit intended to be given, and which was given, was a fictitious and false credit, and consequently the facts averred are tantamount to an averment of the purpose and intent to defraud. Paragraphs 21 and 26 were, however, as above shown, lacking in averment as to injury resulting to complainants from the alleged fraud. It is not charged that the complainants were deceived or misled, by the conduct of the grantee in withholding the deeds from record, into giving credit to Parker & Co. This is a matter which is left wholly in inference, and the demurrers taking the point were properly sustained under the authority of Bliss v. Anderson, supra. For the same reasons the demurrer was properly sustained as to paragraph 27.
