| Ala. | Nov 15, 1902
1. The rule seems to be settled with us, in a suit to set aside a fraudulent, conveyance, whether it be constructively frudulent and therefore voidable, as against past due debts, or actually fraudulent, and voidable as to future as well as to past obligations, that the existence of a debt, for the. payment of which, except for the conveyance, the. property transferred could be made liable to creditors, must appear; and that the grantee in the conveyance must have an opportunity to dispute the debt, and may plead any defense, not merely personal, which the.grantor or debtor could have made against it.—Yeend v. Weeks, 104 Ala. 332; Moore v. Curry, 106 Ala. 286; Lawson v. Ala. Warehouse Co. 73 Ala. 293.
2. The original note in this case was executed by A. E. Caffee on the 16th September, 1892; was for f1,200, payable on the 1st of November, 1893, to R. P. Pepper at the Merchants & Planters’ National Bank, Montgomery,
On the 1st of January, 1894, Caffee gave to the Deposit Bank of Frankfort, his note for $1,059.40, payable at said bank, with interest at 8 per cent, per annum, after maturity until paid. On the 11th November, 1894, lie' gave another note for $841.20, payable two months after date to and at said Deposit Bank, bearing 8 per cent, interest after maturity until paid; and still another, dated January 19, 1895, for $853, payable to 'and at said bank, two months after date, with interest as in the last note.
In his deposition in the cause said Caffee testified: “These notes [the ones last referred to] were executed under a specific, contract in writing with H. H. Watson, cashier of the Deposit Bank of Frankfort, that they wore to be collateral to the Pepper note and contract. I had a good deal of correspondece with Watson. I had paid a large amount on the colts; and I appealed to Watson to renew my note without repairing [impairing] my original contract. He replied that he could not renew the note, as Col. Pepper would not agree to it, but that he, Watson, would take another note as collateral, * * * and the collateral' note was executed.”
Again, on cross-examination, he testified: “I gave Pepper a note and contract for $400, and another note for $1,200. This note never did become the property of the Deposit Bank of Frankfort. The cashier wrote to me that it was Pepper’s property, and that he could not renew it without Pepper’s consent, but that he would take my notes as collateral tm my original note and contract. Said Deposit Bank of Frankfort never claimed to me, that the note was their property, until
Suit ay as afterwards, on the 16th day of November, 1896, brought by said bank against said Caffee on the note for $853, the one last above described, on which judgment Avas obtained in said court, on the 18th of August, 1898, for $1,086.12, besides costs. On_ this judgment an execution Avas duly issued against defendant, on the 8th day of September, 1898, AYhich Avas, on the 16th July, 1899, returned by the sheriff, “No property found.”
It thus appears, that the note on which suit was brought, and judgment obtained against Caffee, Avas the last of the three collateral notes above described, and Aims for the balance due on said original note, of $1,200, payable to said Pepper, the original note never having-been surrendered or cancelled, and that Pepper Avas the OAvner of the note. Whether the Deposit Bank or Pepper ought to have instituted this suit, we do not consider, since it makes no difference for the purposes Ave have in hand. The fact remains, as shown by the undisputed evidence of defendants’ witness, A. E. Caffee, that Pepper aaus a party beneficially interested in the debt, and having died, as the evidence shows, that his estate is interested in the result of this suit to collect that debt. Caffee, therefore, as objected by complainant, was an incompetent witness to prove the declarations or admissions made by Pepper, in a transaction between himself and Pepper, in respect to an agreement, not appearing in the note itself, — the object of the evidence being to shoAA7, that by such declarations of the deceased, Pepper, the indebtedness evidenced by the note had no existence in fact, or, that its consideration had failed. When the lips of Pepper,' the beneficiary in the note, were closed by death, Caffee’s lips were also sealed as to what occurred between them as to this transaction. Code. § 1794; Key v. Jones, 52 Ala. 238" court="Ala." date_filed="1875-01-15" href="https://app.midpage.ai/document/key-v-jones-6508993?utm_source=webapp" opinion_id="6508993">52 Ala. 238; Boykin v. Smith, 65 Ala. 299. This was the only evidence offered
3. The conveyance from Caffee to his wife, executed on the 20th January, 1896, assailed as fraudulent, was a fee simple and with warranty against the claims of all other persons. The consideration, as. expressed therein is for the sum of four thousand dollars ($4,000) “for money received by-me belonging to the separate statutory estate of said Annie E. Caffee, under the laws of this State, said indebtedness being accrued in the following manner: I collected and used for my own purposes, the yearly rental of her plantation in said Lowndes County, the same being four hundred arid fifty dollars for each of the several years, 1891, 1892, 1893, 189-1, 1895, amounting in the aggregate to the sum of twenty-two hundred and fifty dollars, and said lands having been again leased for five years, at the yearly rental of three hundred and fifty dollars, and five promissory notes executed to evidence the same, payable annually, and said rent notes I have used and transferred for money, which I have applied to my own purposes and transactions, said several sums of money amounting in the aggregate to the sum of seventeen hundred and fifty dollars, all said sums of money thus creating the said indebtedness of four thousand dollars as aforesaid: Now, therefore, I, Andrew E. Caffee, being desirous that the said debt may be [mid and made secure to my wife, Annie E. Caffee, for and in consideration of the premises, and of the further sum of ten dollars to me in hand, paid by the said Annie E. Caffee, the receipt of which is hereby acknowledged, do hereby give, grant, bargain, sell and convey unto the said Annie E. Caffee, the following land, known as the Creen place, situated in the county of Lowndes, and State of Alabama, to-wit rdeseribing it by land office numbers], containing in all fifteen hundred and thirty-six acres, more or less,” and “also the following described land in Perry County, Alabama, to-wit” (describing it). This last named tract of land is referred to as the Graham land.
The consideration of this deed is charged in the bill to be simulated, “and that said conveyance Avas executed for the purpose, of hindering, delaying and defrauding complainant in the collection of the indebtedness due and owing by the said A. E. Caffee to complainant.
We may dismiss the matter of the genuineness of the indebtedness to Mrs. Caffee from her husband in the sum of $4,000, and the adequacy of the consideration of the deed, by conceding for the purposes in hand, that the same Avas fair and adequate. It must be stated, that at the time of the conAreyance, there was a mortgage on the Green place to one J. L. Hinson for $475, Avliich is unpaid, and said conveyance to Mrs. Caffee was made subject to this mortgage, which she Avas to pay, as the proof tends to show.
The nnsAver of defendants, A E. Caffee and Avife, sets up the same consideration as is averred in the bill, except that it adds to the $4,000 consideration as expressed therein, the sum of $500, the amount of a mortgage existing at the time, on the property, presumably the one to said Hinson, as there was no other mortgage on the property, and the proof tends to identify the one referred to as that gf said Hinson.
J. C. Wood, a witness for complainant, (testified that he rented the 'Green place, first, for five years, after-Avards for one year, and then for another term of five years, and had charge of the place, at the time he was making his answer; that he paid, according to his recollection, for the first term of five .years, $700, and for the second term. $650 per year. Under the latter lease, then, it Avould liawo been $3,250 for the last term of five years.
A. E. Caffee in fils deposition testified: “I conveyed said Creen place to my wife on or about 20th January, 1896. The consideration was $2,250, received by me from tfie first five; rent notes, tfie $1,750 received by me from the second five notes, heretofore mentioned in full, $475 and interest note and mortgage to J. L. Hinson assumed, and the profits and- rents from Green place were- retained- by me for the yean-s, 1896, 1897, 1898, 1899 and 1900, but this consideration included 75 acres of land in Perry county, Alabama.” Again he testified, in answer to the 6tfi cross-interrogatory, as to what other property fie owned, at the date of said conveyance to his wife, — tfie 20tfi January, 1896, — besides that included in said conveyance, — tfie object of tfie question being evidently, to show that fie was insolvent or in failing circumstances, — that he owned certain personal properties and assets, and among .the number of his assets fie states, the “use of Green place for -five years, of the cash value of $2,250, — rent notes for $650 per year during that period.” The italics employed above have been added by us.
A reservation of benefit which secures some use or benefit to the vendor, which does not result from tfie nature and character of the sale, renders a sale fraudulent.—Goetter, Weil & Co. v. Smith, 104 Ala. 492. In
In this case, according to the undisputed evidence of A. E. Caffee and his wife, the consideration expressed in the conveyance by him to her, which purported to express the whole and only consideration therefor, did not express the entire consideration, but it does clearly appear, that in addition thereto, another, and so far as appears, a private, reservation of the use of the Green property to him for five years, which he says amounted, when considered as cash, to «f¡2,250, but for which notes were held by him, amounting to $3,250, — the notes being for rent of the place conveyed, for $650 a year for five years. This reservation did not result from the nature and character of the transaction of said conveyance, such as the law operating on would secure.
The right to the use and rents is one of the appurtenances of an estate conveyed, and where land is sold and conveyed under lease, the grantee, after the execution and delivery of the deed, is entitled to the accruing rent, unless such right, or the right to collect it, is reserved to the grantor; but it is not necessary that this reservation should appear on the face of the deed.—1 Dev. on Deeds, § 311; Tubb v. Fort, 58 Ala. 277" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/tubb-v-fort-6509788?utm_source=webapp" opinion_id="6509788">58 Ala. 277; Coffey v. Hunt, 75 Ala. 238; Westmoreland v. Foster, 60 Ala. 449; English v. Key, 39 Ala. 117. This private reservation of a benefit to A. E. Caffee in the conveyance he made to his wife was sufficient, under the law, to make the conveyance to her fraudulent and void as to> creditors.
4. On the 22d January, 1896, the defendant, A. E. Caffee, also executed to one W. P. Bussell, two mortgages. one for $1.500, and the other for $3,000, the first to secure an indebtedness for that sum evidenced by the note of said Caffee of that date, payable to said Bussell on the.15th November, 1896, and the other, to secure an indebtedness of $3,000, evidenced by his note to said
As to the $3,000 mortgage it is sufficient to say, as it satisfactorily appears from the evidence, that it was paid and cancelled, before the filing of the bill in this ease, and was no obstruction in preventing complainant from collecting its debt. The testimony of both Caffee and Russell show this.
On the 3d November, 1898, as the evidence of Caffee tends to show, there remained due and owing on said $1,500 mortgage the sum of $531.89. He testified: “I now owe Dr. Russell $500, with interest, from November 3, 1898, and Dr. Russell claims some errors in amount paid to me from the probate office, amounting to less than a hundred dollars. If he is correct, I owe him not less than $700.” Russell testified and stated his account from his books, which shows, as he claims, an indebtedness of some $565. What the true amount of that indebtedness is, we do not now undertake to ascertain. We may say, however, that according, to the evidence of both Caffee and Russell, the mortgages were for a bona ficle indebtedness of Caffee to the latter, and ■were not simulated and made to defeat the creditors of Caffee. There is a great deal of evidence taken to sustain the contention of the respective parties, which would without apparent necessity therefor, involve much time and labor to discuss, The learned Chancellor concluded that these mortgages were not subject to the attacks made on them, and we have not discovered any satisfactory reasons for coming to a different conclusion.
The decree as to the Russell mortgages will be affirmed. but as to the conveyance of said Caffee to his wife, of date the 20th January, 1896, conveying to her the
Affirmed in part, reversed and rendered in part.