Doe ex dem. McGintry v. Reeves

10 Ala. 137 | Ala. | 1846

ORMOND, J.

Although a conveyance of property, real or personal, is binding between the parties to it, it is fraudulent.and void as against the creditors of the grantor, unless it is made upon a valuable and adequate consideration. It has been repeatedly held by this court, that the grantor in such a case, must prove the consideration of his deed. The recital of the fact in the deed, is the mere declaration, or admission of the grantor, which is not evidence against his creditors,, because the question of fraud arises in all cases, where one indebted conveys away his property. [McCain v. Wood, 4 Ala. 264; Bank at Decatur v. Kinsey, 5 Id. 12.]

This question has heretofore arisen in this court upon trials of right of property, where a creditor has levied his execution upon property conveyed by- the debtor to a third person. The principle is not changed by the aspect of this case, when the creditor having obtained judgment, has purchased the property at an execution sale. To defeat the title thus obtained, by one claiming by a conveyance, anterior to the sale by execution, it devolves on him to prove, that a valuable, consideration was given for the property. That not being done in this case, the deed must be considered as merely voluntary, and therefore void against Creditors. This renders it unnecessary to consider the question of notice of the existence of a deed of this description, not registered within the time prescribed by law, because if registered within that period, being voluntary, it would be fraudulent and void against the existing creditors of the grantor.

Let the judgment be affirmed.