Davidson v. Kahn

119 Ala. 364 | Ala. | 1898

McCLELLAN, J.

The erroneous recital in the sheriff’s deed of the date of the execution under which the sale was made does not invalidate the deed. The sale was regular and the deed efficacious whether the execution Avas issued on December 27, 1891, as the evidence tends to s'how>', or on January 1, 1895, as the deed recites, and a mistaken recital, if indeed it was made, of the latter instead of the former date is of no consequence. — Henley v. Bank, 16 Ala. 552; Wilson v. Campbell, 33 Ala. 249.

It did not appear in the case that the endorsement of the levy of the execution appeared on the execution docket, or elsewhere of record. The loss of the execution itself was shown. And it ivas, therefore, entirely competent to show what the endorsement thereon was by parol evidence. — Stewart v. Comer, 9 Ala. 803; Baucum v. George, 65 Ala. 259.

Kahn testified without objection that Machaelis, prior to November, 1893, owned the land, involved in this suit. This was enough in the way of identification to put the defendant to a showing of his title, and his evidence took the question of identity and of Machaelis’ ownership and possession prior to November, 1893, out of dispute. Steele’s testimony could not, therefore, have prejudiced defendant, and if error was committed in receiving it, it will not operate to reverse the judgment.

As between and among the plaintiff and defendant in the execution and the grantee of the defendant in execution, the defendant in this action, and for all the purposes of the present case, the “interest” of Machaelis in the land' levied on was either the absolute title or he was without any interest therein, depending upon whether the conveyance by him to Davidson was void as to plaintiff for fraud or not. As that is the question for adjudication here, for the purposes'of this trial the levy was essentially upon the land as the property of Machaelis. And it -was the land that was sold under the levy and conveyed by the sheriff to plaintiff, and not merely such interest as Machaelis had therein as against Davidson. Moreover, it would seem that a lack of correspondence between the return of the sheriff as to the interest of defendant levied upon and the sheriff’s deed as to the property sold and conveyed is of no consequence: the deed controls. — Forrest v. Camp, 16 Ala. 642.

Plaintiff had the land involved here levied upon and sold, became the purchaser thereof and prosecutes this suit for the recovery of the possession of it on the theory that the deed from Machaelis to Davidson was made to hinder, delay and defraud Machaelis’ creditors, plaintiff among' the rest. There is no direct evidence that the debt from Machaelis to plaintiff, for the payment of which the land was sold under execution, existed at the time of the conveyance to Davidson, but there is abundant room afforded by the evidence for the jury to draw an inference to that effect. So finding it was for them to further consider whether that conveyance was made to hinder, delay and defraud plaintiff and other creditors ; and upon this inquiry it was clearly competent for the plaintiff to show that about the time, the day before in fact, of the conveyance to defendant, Machaelis transferred and conveyed other property upon the consideration of alleged antecedent debts, to Martha Davidson, S. A. Davidson and Marx Arnheim, respectively, who were, as was the defendant, related to him, Machaelis, •and that two days afterwards he made an assignment ■of the remainder of his effects for the benefit of his creditors, there being other evidence than the coincidence of dates going to show that each one of these transactions was but part of a general purpose to dispose of all his estate, and hence that they all constituted but one transaction. This evidence may have had little or no weight with the jury, and it may have been entitled to little consideration as showing fraud; but it was none the less admissible. — Nelms v. Steiner, 113 Ala. 562, 575.

It is insisted for appellant that the evidence without conflict shows that Machaelis owed defendant a debt commensurate with the value of the property conveyed by the former to the-latter as in satisfaction of it, and tliat the conveyance was made in good faith to pay this debt. If this contention were supported by the record the affirmative charge should have been given for defendant. But we do not concur in this view of the evidence. To the contrary, we find that certain books which defendant produced and in which he testified the accounts between him and Machaelis were correctly set down “tended to prove,” to use the language of the bill of exceptions, “that there was nothing due defendant upon (either of) these accounts in November, 1893,” the conveyance having been made November 11th, 1893; and we find no warrant on this evidence as thus stated for saying that it means only that there was nothing due for that the accounts were paid by the conveyance on the day named. If the jury found in line with this tendency of the evidence, as they had the right to do, their conclusion must have been that Machaelis did not owe the defendant on any clay in November, 1893, and hence, of course, that there was no consideration for the conveyance of November 11th, 1893.

We find no error in the record, and the judgment must be affirmed.

Affirmed.