110 Ala. 446 | Ala. | 1895
1. It is well settled, that a solvent debtor, as well as one who is insolvent, may be guilty of a fraudulent intent in the sale of his property ; that such a debtor may convert his property into money for the purpose of putting it beyond the reach of his creditors, and a vendee who purchases with a knowledge of such fraudulent purpose, for a eash consideration, is a participator in the fraud and acquires no title as against creditors ; and that a voluntary conveyance is void per se as to existing creditors without any regard to the intention of the parties, or to the circumstances of the grantor, or the amount of his indebtedness, or to the kind, value or extent of the property conveyed. — Dickson, v. McLarney, 97 Ala. 389; Smith v. Collins, 94 Ala. 394; Sides v. Scharff, 93 Ala. 107; 3 Brick. Dig. 515, § 119. It is manifest, therefore, if the first alternative averment of fraud be true, the bill contains equity, and is not subject to the demurrer interposed,.so far as it rests on that particular ground for relief.
2. But, the bill is filed, not alone on the ground that the saléis constructively fraudulent, as against creditors whose claims existed prior to the execution of the conveyance assailed for fraud, but that it is actually fraudulent as to subsequent creditors, in that it was made with the intent to hinder, delay and defraud the creditors of the grantor.—Yeend v. Weeks, 104 Ala. 331. And, its equity is assailed, on this ground, by the demurrer, in that the “bill fails to aver, that the secret benefit alleged to have -been reserved [to the grantor] was so reserved with the intent to hinder, injure, delay or defraud complainants, or other creditors of these defendants/’ — the said Beall & Coston. But, the demurrer in this respect, is bad for two good reasons. In the first place, the alleged defect in averment does not in fact exist. This reservation of a benefit reserved to the grant- or is not set up as a distinct and third alternative averment for relief, as is assumed; but, in its connection, it
3. The demurrer was properly overruled for a second reason.' It went to the whole bill, and not to a part of it. There wore two alternative grounds, on either of which, if established, relief could be granted. The first ground is not questioned.and is unassailable. A demurrer to a bill as a whole cannot be sustained, if, for any equity appearing in it, the complainants are entitled to relief .—George v. Central R. R. & Banking Co., 101 Ala. 608; Tillman v. Thomas, 87 Ala. 321; Shipman v Furniss, 69 Ala. 563.
There is no error in the decree of the chancery court, and it is affirmed.