107 Ala. 660 | Ala. | 1894
We are of opinion that the demurrer to the bill was properly overruled. It has been the law of this State announced in our decisions since early in the State’s history that a voluntary conveyance made by the donor with actual intent to binder, delay or defraud creditors, existing at the time, or those whose demands may thereafter accrue, is void as against his creditors, existing or subsequent. This principle is conceded by respondent’s counsel, but it is contended that the rule does not apply in favor of the subsequent creditor if when he extended the credit to the donor, he had actual or constructive notice of the existence of the conveyance. The bill alleges the want of such actual notice on the /Dart of complainants, but alleges that the deeds sought to be avoided by them as fraudulent, were recorded prior to the extension of the credit. It will thus be noticed that the proposition 'of the respondent narrows itself to this, that the constructive notice, which the statute accords to registration, of the mere existence of the deed is sufficient to deprive the subsequent creditor of the right to assail the deed as fraudulent, excluding all necessity for notice on the part of the creditor, when the debt was contracted, that the deed was executed with the actual intent to defraud creditors. In other words, the propo
It is demurred that the bill fails to allege sufficiently the facts constituting the fraud relied on to defeat the deed. The averments are, that, at and before the execution of the deeds, the donor, A. Ewing Echols, was a member of the mercantile partnership of Echols & Sheffey engaged in the retail grocery business in the city of Huntsville, Ala.; that said firm then was indebted to a named creditor in the sum of $173.40, for merchandise sold to the firm, which sum they had been owing for more than 'sixty days prior to the execution of said deeds; that the said deeds were executed by the donor voluntarily and without consideration, and for the purpose of hindering, delaying and defrauding the creditors of said firm of Echols & Sheffey, and that said donor then contemplated and intended that said firm should make the purchases, and incur the indebtedness which they made of, and now owe to, the complainants, and many other debts and liabilties not described, and intended to make default, and refuse to pay the same. We are unable to see how the case can be made by more specific averment of facts.- The facts which constitute the fraud available to the creditor are, first, that the deeds were voluntary, and, second, that they were executed with the intent to hinder, delay or defraud creditors. These facts are alleged. The bill also shows that the donor was engaged in the mercantile business and during the summer and fall following the execution of the deeds in June and July, 1893, his firm contracted the several debts now due to the five complainants and many other debts which they had not paid at the filing of the bill on Dec. 9, 1893 ; and that at that- time, neither firm nor either member thereof owned any property subject to execution ; and that the property which Echols had conveyed to his wife in June and July preceding was worth
Affirmed.