Floyd v. Floyd

77 Ala. 353 | Ala. | 1884

OLOPTON, J.

Omitting all superfluous allegations, the bill must be construed as filed' by a judgment creditor having an unsatisfied execution, under section 3882 of the Code, for the purpose of discovering any property belonging to the judgment debtor, or held in trust for him. Such a bill is in aid of the execution at law, and entitles the complainant to a discovery of all the property, real and personal, legal and equitable, which the defendant owned, or had an interest in, at the time the judgment was obtained. The bill may be general in its allegations, and they may be in the alternative ; but the complainant is not required to allege fraud on the part of the debtor, or the concealment of his property with the intent to hinder, delay, or'defraud his creditors. — Brown v. Bates, 10 Ala. 432.

There is no allegation that any fraudulent conveyance or disposition of his property has been made by the debtor, which the bill seeks to annul. The averments are, substantially, that the debtor owned and held in his own name the lands mentioned in the bill, to the time of the rendition of the judgment; that he and his wife have conspired to defraud complainant, and the wife, pretends to own and hold the lands and all other property belonging to her husband ; and if any deed or other writing was made by him to her, it was made after the rights of complainant had accrued, without any valid consideration, and with intent to defraud complainant. The allegation of a pretense to own and hold is not equivalent to an averment of a conveyance or transfer to her by the husband. On the bill being taken confessed, the court could render no decree annulling or avoiding -any particular conveyance or transfer. The bill is not framed for the purpose of subjecting property alleged to have been fraudulently transferred, but for discovery and relief under the statute. So construed, the bill is not obnoxious to the specified causes of demurrer, in whatever other respects it may be defective.

An answer under oath was required, and the submission was on bill and answer. The answer stated, that the defendant debtor did not own any of the property in the bill mentioned, but that it belonged to the wife; and disclosed several conveyances of land to Mrs. Floyd, one of which was made by her husband in 1880. No discovery of any property belonging to the judgment debtor was made, other than that the land conveyed to his wife formerly was his property. It may be conceded, that in respect to this land the onus was on Mrs. Floyd to show a valuable eonside2’ation paid. It has been unifo2'mly held, that a deed by the husband to the wife in payment of money, being her statutory separate estate, convei'ted or used by him for his own purposes, is founded on a valuable consideration. By an interrogatory authorized by the averments of the bill, the defendants were called on to discover whether either of them owned the lands, or any parts of them, in the bill mentioned, and if so, from whom, and when acquired, and what was paid for them, and to attach copies of the several deeds. In response to this interrogatory, the answer attaches copies of the various deeds, and states the amount of purchase-money paid for each parcel. As respects the land conveyed by the husband, it states that the conveyance was made to reimburse the wife for money and property of her statutory separate estate, which he had converted and used for his own purposes, and also the times when, and the sources from which derived, and the amount received from each source. The answer is responsive to the interrogatory, and must be taken as true, not being controverted. — Fenno v. Sayre, 3 Ala. 458.

It was competent for the complainant to have disproved the denials and statements of the answer; but no evidence was offered for that purpose. The answer denying all fraud, and showing responsively a valuable consideration, in the absence of such evidence, the lands are not subject to complainant’s judgment.

Reversed, and a decree will be here rendered dismissing the bill, at the costs of appellee, in this court, and in the Chancery Court. •