157 So. 868 | Ala. | 1934
Bill of complaint by creditor to set aside a conveyance by her debtor, charging that said conveyance was voluntary, or, in the alternative, that it was with the intent to hinder and defraud the complainant.
It is well settled by the decisions of this court that an existing creditor may have the chancery court set aside a deed as fraudulent when it is voluntary, without allegation, that debtor was insolvent or that parties participated in intent to defraud. Kratz et al. v. Bonner,
The bill, however, fails to charge that the complainant was an existing creditor when the deed in question was made. It does aver that a suit was brought two days before the deed was made and that a judgment was rendered the following October, several months after the deed was made, and this would naturally indicate from the rendition of the judgment that the cause of action existed when the suit was brought. But it was expressly decided in our early case of Troy v. Smith Shields,
The other alternative, charging fraud, was open to the demurrer of the respondents. The bill does not show that the complainant was an existing creditor, and, in order to be good as charging fraud mala fides, should set out the facts constituting the fraud and not rely upon a mere conclusion of fraud. Tyson v. Southern C. O. Co.,
The trial court erred in overruling the demurrer to the bill of complaint, and the decree of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
THOMAS, BROWN, and KNIGHT, JJ., concur.