Calvert v. Calvert, 60 So. 261

60 So. 261 | Ala. | 1912

MAYFIELD, J.

The bill in this case was filed to set aside and annul, as fraudulent, two conveyances made by Joe Oalvert to Vida Oalvert (appellants), copies of which are attached as exhibits to the bill. One of the conveyances is of land, and the other of personalty. The recited consideration of the first is love and affection and the payment of $100, while that of the second is love and affection and the payment of $50.

The bill alleges that appellee ivas a creditor of Joe Oalvert, the grantor, in this manner: That prior to the time of the conveyances Joe Oalvert committed an assault and battery upon appellee, and that thereafter appellee obtained a judgment against Joe Oalvert in the siim of $1,000, and that between the time of the assault and the obtaining of the judgment Joe Oalvert conveyed the property described, being substantially all that he had, to his wife, in order to hinder, delay, or defraud appellee, his creditor. It further alleges “that there was no consideration passing from said Yida Oalvert to said Joe Oalvert, or that the consideration therefor was simulated.” The answers admitted all the averments of the bill, except that the conveyances were fraudulent, and that there was no consideration therefor, or that the consideration was simulated, and averred: “Respondents deny that the consideration for said' conveyances are simulated, or that they were made to hinder or delay or defraud the complainant in any way; but respondents say that, in addition to the consideration expressed in the conveyances of which exhibits purport to be a copy, the respondent Yida Calvert paid out for respondent Joe Calvert, or assumed the payment of, the following debts: The payment of $150 which were mortgage debts against the lands described in the bill of complaint, and the assumption by respondent of the payment of $50 due by respondent Joe Calvert to Joe Albrittain, and tbe assumption by respondent of the payment of $71 due by respondent Joe Calvert to Jasper Calvert, as tbe administrator of tbe estate of J. C. Calvert, and tbe assumption by respondent Vida Calvert of tbe payment of two notes, aggregating $121, due and owing by tbe said respondent Joe Calvert.” Tbe case was submitted on tbe bill, exhibits, and answer ; no other proof being offered. Tbe answer having thus admitted tbe equities of the bill, except as to tbe bona fides and tbe consideration, as to which tbe burden of proof was upon tbe respondents, tbe chancellor properly granted tbe relief prayed.

Tbe note of testimony shows that tbe respondents submitted on their answer, tbe bill, and their answers to tbe interrogatories propounded to them by tbe complainant ; but tbe record further shows that complainant objected to tbe respondents’ offering this proof, and that tbe court sustained this objection, and properly so, because these answers were admissible only when offered by tbe complainant. Interrogatories propounded to tbe adverse party, under our statutes, are treated as being in tbe nature of a statutory substitute for a bill of discovery, and are not admissible in evidence unless offered by tbe party taking them, and, if offered at all, they must be offered as a whole, and then tbe party answering may have tbe benefit of tbe answers ; but be cannot introduce them in evidence, certainly not over tbe objection of tbe party taking them. Such interrogatories and answers of tbe adverse parties are different from those of Avitnesses. Tbe cases of Gunn v. Hardy, 130 Ala. 642, 31 South. 443, and Schall v. Weil, 103 Ala. 411, 15 South. 829, are conclusive, “in such a contest, tbe onus of proving that the conveyance Avas founded on an adequate and valuable consideration is upon the grantee. The bill in this case averred, and tbe proof showed, the complainants’ claim against the alleged fraudulent grantor was in existence before and at the time of the Conveyance to the grantee. It has long been settled in this state that in a controversy of this character the recital of the consideration of a deed thus assailed is not evidence against the creditor, and is the mere declaration or admission of the grantor, as between him and the grantee. There ivas no proof on the part of the grantee as to the consideration of this deed. He relied upon the denials in his answer, and supposed these put the burden of proof of the allegations of the bill on the complainants. Under our uniform rulings, we must regard the conveyance as voluntary and fraudulent.—Hubbard v. Allen, 59 Ala. 283; Hamilton v. Blackwell, 60 Ala. 545; Zelnicker v. Brigham, 74 Ala. 598; Thornton v. City Council of Montgomery, 88 Ala. 552 [7 South. 363]; Chipman v. Glennon, 98 Ala. 263 [13 South. 822]; Schall v. Weil, supra.

There was no error in the decree of the chancery court, and it must be affirmed.

Affirmed.

All the Justices concur.