Falkner v. Leith, 15 Ala. 9

Falkner v. Leith

15 Ala. 9 | Ala. | 1848

CHILTON, J.

1. It cannot be considered as an open question in this court, whether land acquired by entry, and for which a receipt of full payment, certifying the entry, has been executed by the register, vests such title in the person to whom it is given, as is subject to be sold under execution at law. This precise point was decided in Goodlett v. Smithson, 5 Porter’s Rep. 254, which was recognized as settling the rule correctly in Rosser v. Bradford, 9 Porter, 345, and also in the decision upon this case when heard previously, 12 Ala. Rep. 170. The rule has become too firmly settled by judicial decision now to be departed from, however much I might be disposed, were the question res integra, to a different conclusion. '

2. It is very clear, that neither the acts nor the accompanying declarations of Leith, the defendant, which occurred subsequent to the institution of this suit against him, as the same were allowed to be. proved in this cause, are admissible, for if such proof were allowed, there wmuld be no end to the expedients to which men might resort, to fabricate' testimony, so as to meet the various exigencies of their defence.

We might here close, but other points are presented which may again arise upon another trial, and therefore require a decision.

The same reasoning is equally applicable to the question of consideration, as evidenced by the recital in the transfer of the receipt by Leith to Jones. This transfer was made after the debt was due to the plaintiff, under which the land was sold, and only seven days before it was reduced to judgment. And Leith remained in the possession of the land which he had thus transferred to Jones, his kinsman. Now we think it very clear, that under the circumstances of this case, it was incumbent on the defendants, in order to defeat the right of the creditor, to show the consideration of the sale. If the bare recital proves the consideration, then a debtor seeking to screen his property from the payment of his debts, may by a dash of the pen insert in his fraudulent transfer, “for value received,” and set his creditors at defi*14auce. Such transactions are most usually unattested by witnesses, and in most cases, the creditor would find it impossible to prove a negative — that the payment was not made, whereas the honest purchaser would rarely fail for want of proof. Upon principle, therefore, it would seem the proof of consideration should be made by the party holding the affirmative. The point however is well settled upon authority. In McCain v. Wood, 4 Ala. Rep. 258, it was held, that when the contest is between the creditor and the grantee, in a trust deed to secure .another creditor, the consideration of the deed must be shown, and is not proved by the recitals in the deed, or by the admissions of the grant- or at the' time of its execution. So in the Branch Bank at Decatur v. Kinsey, 5 Ala. 9, it was held, that as a voluntary conveyance was void as against creditors of the grantor, it was necessary, that the person claiming under such conveyance, should prove the consideration in a controversy between him and the creditor. Also, that in such case, the recital in the conveyance is no evidence of consideration, as it is no more than the admission of the grantor, but the fact must be proved by extrinsic evidence. See also, McCaskle v. Amarine, 12 Ala. 24.

As to the admissions of Leith, which were rejected by the circuit court, and which were offered to be proved against him, they should have been allowed. They are evidence against him, and if the defendant, Jones, desired to avoid any effect which he supposed such admissions of his co-defendant might have upon him, a charge should have been asked of the court. Palmer v. Severance, et al. 9 Ala. Rep. 751.

These views will be a sufficient guide for the final disposal of the case in the court below.

Let the judgment be reversed and the cause remanded.