Eskridge v. Abrahams

61 Ala. 134 | Ala. | 1878

STONE, J.

The recited consideration of the deed,'which the bill in this case seeks to set aside as fraudulent, is four thousand three hundred and forty-six dollars. There is no testimony that the land and other property was worth more than that sum, or even that much. On the contrary, the testimony tends to show 'that the property conveyed was not worth that sum. Eskridge, the defendant, testifies that when he made the purchase he paid no money, and that by the terms of the purchase, he was not to pay any thing to his father, the vendor. He was to pay to certain creditors of his father, sums of money which amounted to the purchase price of the land. He testified in his cross-examination that he had made payments to various named creditors of his father, amounting to the aggregate sum of forty-three or forty-four hundred dollars. True, this part of his deposition was suppressed; but it furnished the complainant information of the persons to whom he alleged he had made payments, and thus enabled him to disprove the alleged payments, if the claim was false. The testimony of May, taken by complainant, but not offered by him, corroborates Eskridge as to the conditions of the purchase, and the agreed manner of payment; and this witness proves that Eskridge, jr., had paid the debts he had agreed to pay. As we said above, if Samuel Eskridge, the younger, did not pay these debts, as his own testimony and that of May tends to show, ample means was furnished complainant to disprove the pretense, and he has failed to do it. It is manifest that the testimony in this case is less full than it might be made. Still there is enough, unrebutted as it is, to produce a reasonable conviction that Samuel Eskridge, jr., paid the debts of Samuel Eskridge, sr., which, by the terms of the purchase, he agreed to pay; and there is not only a failure to prove the property was worth more than the price promised and paid, but the testimony is that the property was worth less.

Much stress is laid on the fact that Gov. Chapman testifies that a will was first spoken of, and that he informed Mr. May that the object contemplated could not be carried out by a will. Neither he nor any other witness explains what is here meant. If the object was that all the property should go to all the debts in equal proportion, then that object could have been accomplished by a will, or the law would have accomplished it, less dower and exemptions, without either will or deed. We suppose his object was to pay certain debts with his property, which would, in effect, give a preference to certain named creditors over others. A debtor, not owning property sufficient to pay all his debts, may, by a sale made in good faith, devote his entire property to certain of his debts, and leave his other debts unprovided for. Crawford v. Kirksey, 55 Ala. 282. And, in such case, it-matters not whether the property, if sold for its fair market value, is transferred to the creditor himself, or sold to another, and the payment made to the creditor. When the consideration-money is the reasonable value of the property, is actually paid by the purchaser, and goes to the bona fide creditor of the seller, there is no fraud in such transaction, although other creditors equally meritorious lose their demands. Failing debtors have the right to prefer one creditor to another by an honest sale, unless they thereby secure some benefit, bounty, or secret trust for themselves or families. We think Gov. Chapman’s advice in this case was based on the communicated wish of Samuel Eskridge, sr., to devote his property to certain named debts. The testimony of May goes to prove this; for he testifies that Samuel, sr., stated his object was to pay his debts, and that he could not make any provision for his family. We think the testimony justifies this conclusion, and we fail to find anything in this circumstance, tending to establish fraud or secret trust.

As we understand the testimony in this record, it does not tend to show that the property was transferred to the younger Eskridge in trust for the payment of the elder Eslcridge’s debts. If such were the case, then it would have the properties of a general assignment, for it conveyed everything of value which the grantor owned. — See authorities collected in Crawford v. Kirksey, 55 Ala. on page 302. The present transaction was an absolute sale and conveyance from father to son, with the stipulation that the purchase-money was to be paid to certain creditors of the grantor, and not to the grantor himself. This does not change its quality, as a deed of bargain and sale. It is not a general assignment.

There is an entire failure of proof in this case that the support of grantor’s family was to be any part of the consideration of the conveyance. True, he expressed the belief that his son would not marry, and that he would “take care of his, grantor’s family.” This would be but the discharge of a filial duty, which might be expected of a dutiful son. The witnesses, May and Eskridge, testify that there was no agreement to that effect. This declaration of the dying father can not avoid the present conveyance, which is otherwise shown to be a deed of bargain and sale, upon full consideration paid. If there was simulation of payment, or secret trust, it has not been proved.

The decree of the chancellor is reversed, and a decree here rendered dismissing complainant’s bill.

Beversed and rendered.