57 So. 483 | Ala. | 1912
The bill in this case is filed by the appellees to set aside, as fraudulent, a deed made by W. IT. Cooper and Avife to Nancy J. Elam, Avho was the Atúfe of L. T. Elam, on the ground that the property in question Avas bought by said L. T. Elam, paid for AAÚth his money and the conveyance directed by him to be made to his said Avife, for the purpose of hindering, delaying, or defrauding his creditors.
The defense set up is that although L. T. Elam (the husband) negotiated the original transaction for the purchase of the land in 1904 for $1,800, of Avhich $600 Avas paid in cash, at the time of the purchase, and although, at that time, he said nothing to Cooper about his acting for his Avife, yet he aaus purchasing for his Avife, made the first payment of $600 with nioney belonging to his AAife; that all subsequent payments Avere made by the AAÚfe out of her oavu moneys, and the deed finally made to her, under his instructions. There Avas no writing at the time of the original purchase. Subsequently Cooper made out a title bond in the name of L. T. Elam, who testifies that he refused to receive the same because not made to his Avife. There is a conflict between his testimony and that of another Avitness as to whether such a conversation took place, but the evidence shows that said title bond Avas never delivered to him, according to the testimony of respondents, and the vendor,
A. L. Elam, the father of L. T. Elam, who is also the executor of ' Nancy J. Elam, who has died since the commencement of this suit, testified that said Nancy J. Elam paid for the property; that she gave him $500 to keep for her in 1902; that she had $100 when she was married; that she had at least $250 realized from cotton raised by her on the place in controversy; that she also sold chickens and eggs; that the cotton was ginned at his gin, and he paid her the money for same; that he loaned her $100 to make out the $600 for the first payment; that he borrowed $600 from George Mitchell, he and Nancy J. Elam signing the note, to make the second payment, and that he subsequently repaid the money to George Mitchell; that he furnished $200 and Albert Elam $400 to said Nancy J. Elam to make the third and last payment; that the deed to Nancy J. Elam was delivered to him by Cooper for her; that at that time J. L. Elam was “on the
No attempt is made to impeach any of the witnesses on the part of the respondents nor to controvert any of the facts testified to by them, except the single fact that the bond for title was made by Mr. Ellison and offered by him to L. T. Elam, the. complainants relying upon the general fact that L. T. Elam said nothing about his wife when he made the first negotiation for the purchase of the land, that he was the active agent in making the first and second payments, and that he was engaged in a hazardous business which would suggest a desire to protect himself against creditors, and the fact that the witnesses were parties connected by blood or marriage with L. T. Elam or his said wife. The only objections made to the testimony of A. L. Elam are that it is hearsay, and the witness was not present when the money was actually paid to Cooper. While there may be some hearsay statements in his testimony,
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As to the testimony of J. W. Logan, the motion was to exclude his entire testimony in chief. It certainly was not hearsay that he knew about the time she bought-the land, as that is a matter that may always be proved in this way for the purpose of fixing a date, and the conversation which he had with Nancy J. Elam was admissible as a circumstance tending to show that she was contemplating purchasing the land at the time it was purchased. His statement on cross-examination that he does not know who bought the land does not show that he did not know what he testified about, but only that he does not know what is the legal result of the transaction, which is a question of law to be determined by the court.
The majority of the court, consisting of Anderson, McClellan, Mayfield, Sayre, and Somerville-, JJ., are of the opinion, as expressed by Justice Anderson, that the decree of the chancery court must be affirmed. They think that the reasonable inference to be drawn from the evidence is that the money paid for the land was the husband’s, and that the wife was a mere dummy or “man of straw,” used for the purpose of deceiving and defrauding the creditors of the husband- — future, as well as existing ones. They are also aware of the rule that creditors cannot complain of a disposition b-y a debtor of exempt property — that is, property not subject to their claims — but do not think that the bill proceeds
The writer expresses his opinion in dissent as follows:
There are certain general principles that are settled, to wit: When a voluntary conveyan ce is attacked by a creditor existing at the time of the conveyance, no proof of actual fraud is needed, as the deed is void as to existing creditors. When a voluntary conveyance is made it is valid as to subsequent creditors, unless fraud in fact be shown, and the burden is on the complainant to show it, and as the donee has paid no consideration, it is not necessary to connect him with the fraud. — Seals v. Robinson, 75 Ala. 364, 369, 370; Allen et al. v. Caldwell, Ward & Co., 149 Ala. 293, 297, 298, 42 South. 855. When a- conveyance is attacked by creditors who were such at the time of the execution of the conveyance, the burden is upon the vendee to prove that the conveyance was supported by a valid, valuable consideration.— Walton, Whaun & Co. v. Atkinson & Co. et al., 84 Ala. 592, 4 South. 681. Transactions between husband and wife are closely scrutinized, and, as to existing creditors, a deed made by a vendor to the wife under instructions by the husband is presumed to have been paid for by the husband, thus placing upon the' wife the burden of proving an adequate consideration; yet, as to subsequent creditors, the burden is on the creditor to show either that there was no consideration, or that the deed was made for the purpose of hindering, delaying, or defrauding creditors. — Walton, Whaun & Co. v. Atkinson & Co. et al., supra; Bangs, Bard & Co v. Edwards, 88 Ala. 382, 6 South. 764; Watts et al. v. Burgess &
Under our statutes, as they have existed since 1886, the earnings of the wife belong to her separate estate, and, if -the husband has converted the same, he can convey property to her in payment or reimbursement of the same, just as he could to any other creditor, and lands purchased by her earnings cannot be subject to the husmand’s debts, though the conveyance was executed after the accrual of the debts. — Carter v. Worthington & Smith, 82 Ala. 334, 2 South. 516, 60 Am. Rep. 738. In the case of Bangs, Bard cG Co. v. Edwards, supra, a conveyance made by a third party to the wife, at the instance of the husband, was sustained against creditors on the testimony of the husband and wife that she had lent the proceeds of her earnings to her husband until she could purchase a house and lot, and that the husband had paid for the land purchased in merchandise from his store. — 88 Ala. 386, 387, 6 South. 764. In the case of Wing v. Roswald, 74 Ala. 346, 349, a conveyance to the wife was sustained against creditors on the testimony of the husband and wife and the wife’s father; this court saying: “It is true that we find some contradictions in the details of appellees’ evidence as to dates and perhaps amounts; but the essential facts of the case are not shaken to such an extent as to authorize us to stamp them as a sheer fabrication, having
In the present case it cannot make any difference when the deed was actually -delivered. The real transaction was when the husband directed the title to be made to his wife. As said in the case of Carter v. Worthington & Smith, supra-: “The controlling test would be, Was the consideration paid to the grantors the property of the wife?” — 82 Ala. 337, 2 South. 517, 60 Am. Rep. 738. In fact, even if the purchase had been made by the husband and nothing said about the wife, if, in fact, the property was pa,id. for by her funds, not only could the husband have conveyed it to her in payment of the debt, but he could have been forced to do so. Whether the burden of proof was on the one or the other, in the absence of evidence to the contrary, we cannot presume that the testimony of the respondents is a fabrication, and accordingly we hold that under the evidence the property in question was paid for with the money of Nancy J. Elam, and the deed to her was valid. In addition to what has been said, the evidence in this case shows that the land in question was a homestead, and that at the time of its purchase it was worth only $1,800; and while there is evidence tending to show that, after the said Nancy J. Elam, had placed a house upon it, to wit, when the testimony in this case was taken, the property was worth $1,000 or $5,000, yet, if it was a homestead worth only $1,800 at the time the husband directed the title to be conveyed to his wife, it would not matter who paid the purchase money.
Affirmed.