Gamble v. Aultman & Co.

125 Ala. 372 | Ala. | 1899

TYSON, J.

The bill in this cause was filed to have declared fraudulent certain conveyances executed in 1890 by the respondent, John Gamble, to his children, liis co-respondents. It appears from the averments of the bill that Gamble’s indebtedness to the complainants •arose in 1884, and was reduced to judgment on March 22, 3.890. That executions were issued upon this judgment and returned “no property found.” The bill charges That the several conveyances made by Gamble to his corespondents were voluntary. The answer of the respondents, which was a joint one, after admitting the existence of the judgment owned by the complainants, simply denies the allegations of the bill that charges the 'conveyances to be voluntary and the 'consideration recited in those conveyances to be fictitious.and simulated, with the additional allegation “that they have an interest in the lands described in the bill; that they purchased the said lands in good faith and for a valuable consideration, without notice of plaintiff’s lien and before judgment was obtained against John Gamble.”' The complainants’ debt was shown undisputedly by the evidence to have been in existence at the time the conveyances assailed were executed. It also is shown by the evidence that executions upon the judgment were returned “no property found.” These two facts, being shown, the burden of proof was upon the respondents of showing that the sales by John Gamble to them were fair and made in good faith; and also upon them to show that the considerations were valuable ones, and that the prices they paid for the lands were not less than their value. In other words, the burden is upon them to overcome the presumption of unfairness and mala fieles in the transaction.- — Wood v. Pebbles et al., 121 Ala. 100, and authorities there cited; Halsey v. Connell, Green & Co., 111 Ala. 221; Freeman v. Stuart, 49 Ala. 158; Henderson v. Brown Co., 123 Ala. 623. In order to lift this burden, however, affirmative averments of the facts relied on as constituting the consideration is as essential as satisfactory jjroof of their existence. The respondents in order to be accorded the advantage of evidence offered in support of the bona fieles of the transaction, should have alleged in their answers the -facts showing good f-aitli, the actual payment of an adequate consideration, how, when and in what the consideration was paid. As said by Mr. Daniel, (1 Dan. Ch. Pl. & Pr., 711, 713), “It is of great importance to the pleader in-preparing an answer to bear- in mind that besides answering the plaintiff’s case as-made by the’bill, he should' state to the court upon the answer, all the circumstances of which the defendant intends to avail himself by way of defense; for a defendant' ought-to apprise the-.plaintiff •by his ansAver of the nature of the case he intends to set up, and that, too, in a -ciear, unambiguous manner; and in strictness, he cannot avail himself of any matter of defense which is not stated in his 'answer, even though it should appear in his evidence.” The answer must put in issue all the facts on Avhich the defendant relies in. bar of the relief sought by the bill, and evidence cannot be adduced of facts outside of these issues; otherwise the answer does not apprise the complainant of the line of defense which avüI be resorted to, nor afford him that opportunity for preparation to meet it which is the leading purpose of all pleading, and which the complainant is ahvays entitled to with respect to a matter of defense-affirmative in character and relied on to defeat and overturn a prima, facie case made by the bill. — Wood v. Pebbles, supra; Freeman v. Stuart, supra; Robinson v. Moseley, 93 Ala. 70; Moog v. Barrow, 101 Ala. 209.

The answers of the respondents in this case being. AAiholly insufficient in aArerring affirmative matter of defense, the burden of Avhich was upon the respondents to-aver and prove, and being fatal to the rights of the complainants, there Avas no error committed by the chancellor in granting the relief- sought by the complainants’’ bill.

An examination of the testimony in this case illustrates forcibly the reason for the doctrine Avhich we have-announced, Gamble, the insolvent debtor, in his testimony says that the sole consideration for the deeds which he executed was the payment by his children, who are his co-respondents, of $1,100 which he owed Foust. He shows in his testimony that the lands were worth $2,000 — $900 more than the amount paid by his grantees to Foust. 1-Iis testimony makes the transaction as against the complainants fraudulent. Some of the respondents undertake to set up by their testimony adverse possession to a portion of the lands for more than ■ten years before the execution of the conveyance to .them by their fathers. All of them, however, admit that as a part of the consideration of the deeds to. them was-the payment by them-of the Foust debt. And it is our opinion that the sole -consideration for these conveyanees was as testified to by Gamble, the father — the insolvent debtor. ¿

The decree of the court below must be affirmed.