Ginn v. Hardy, 130 Ala. 642

Ginn v. Hardy

130 Ala. 642 | Ala. | 1900

TYSON, J.

Plaintiff claims title to the lot in controversy under a sheriff’s deed made to him -as purchaser at an execution -sale, had on.December 18, 1893. This execution was against J. D. Hardy and was issued out of the chancery court to enforce the collection of *650three hundred and forty-four dollar® recovered by the plaintiff' of him for the use and occupation of a certain lot, the title to which and the right of possession was involved in that suit and the costs thereof amounting to $226.55. The suit in the chancery court was commenced in 1883, and during its pendency in 1886, Hardy being the owner of and occupying- the lot in controversy as his homestead, executed to his wife the deed under which she claims title to it. The deed is attacked for being fraudulent and void as against the plaintiff' who, it is contended, was a creditor at the date of its-execution against whose demand there is no exemption under the constitution and statutes of this State.

It cannot be doubted that if the damages recovered in the chancery court, and for which the execution was, issued to enforce, were for a tort, that Hardy was not entitled to claim the lot involved in this suit as exempt, from levy and sale under the execution. It is only against debts or-demands arising out of contract that a homestead exemption is allowed the debtor.—Art. X, § 2 of Const.; § 2033 of Code; Meredith v. Holmes, 68 Ala. 190; Williams v. Bowden, 69 Ala. 433; McLaren v. Anderson, 81 Ala. 106; Vincent v. The State, 74 Ala. 274; Wright v. Jones, 103 Ala. 539.

For the purpose of determining the nature and character of the demand, whether in tort or contract, when, not disclosed in the decree, it is competent to look at all the pleadings, orders, etc., in the cause.—Northern v. Hanners, 121 Ala. 590, and authorities therein cited. The record in that cause discloses that Hardy’s liability, enforced by the execution, resulting in the purchase by the plaintiff of the lot in controversy, arose not out of any contract between him and the plaintiff, but out of his tortious possession of the lot involved in that suit. No contractual relations whatever existed between them with reference to the title to that lot or the right to the possession of it by Hardy. He went into the possession of j.t, not by the consent of Gunn, express or implied. It was only after Hardy recovered it in an action of ejectment and a writ of possession issued against Gunn that he surrendered the possession *651of it, and. Hardy took possession. It was for the unlawful use and occupancy by Hardy that G-unn recovered the damages in the chancery -case. And as against that recovery, the lot in dispute was not exempt to Hardy as a homestead, and as against 'that -demand, if the plaintiff is a creditor within the meaning of the statute -of frauds and entitled to its protection against fraudulent conveyances, the deed to Mrs. Hardy is void.

Was the plaintiff a -creditor, at the date of the deed to Mrs. Hardy, within the meaning of section 2156 of the Code?

As the decree adjudging Hardy liable for damages is only evidence of the existence of his liability at the date of its rendition, and as Mrs. Hardy’s deed antedates the rendition of the decree, we are authorized to look to the record beyond the decree for the purpose of ascertaining not only the cause of action, but when the right or claim arose upon which the decree is based. Yeend v. Weeks, 104 Ala. 340. Consulting the record, we find that at the date of the deed to Mrs. Hardy, Hardy Avas liable to the complainant in that suit, plaintiff in this one, for use and occupation for nearly three years. In other Avords, had the decree been rendered just prior to the execution of the deed, Hardy’s liability would have been nearly one-half of the amount recovered of Mm. As the measure of damages recoverable was the value of the lot, and as this is shoAvn to have been four dollars per month, it requires but a simple mathematical calculation to ascertain the extent of Hardy’s liability when the deed was made.

Becurring to the question propounded above, while it has not been decided in this State, there are many decisions in other States directly on the point under statutes substantially the -same as ours. These cases can be found in a note of Mr. Freeman’s in 52 Am. Dec. 114. That author after examining them says: “Claims for damages arising from torts are almost universally regarded as within the protection of the statutes against fraudulent conveyances. Persons having such claims are treated as creditors within the meaning of the statutes.”

Having shoAvn that plaintiff’s cause of action against *652bis debtor Hardy, the grantor in the deed under which Mrs. Hardy claims title to the lot in controversy, arose some years before that deed as executed, and that he was a creditor of Hardy at and prior to its execution,the case is one of an existing creditor attacking the deed as fraudulent. The consideration expressed upon the face of this deed is in these words: “the sum of one dollar and the further consideration that I wish to provide a home for my family.” In Houston v. Blackman, 66 Ala. 564, this court held, that a deed expressing substantially the- same consideration as this one was voluntary as against creditors, 'and that parol evidence was inadmissible to show that it was founded on a valuable consideration. It was there said: “There can be no doubt, that a deed founded on, and expressing a merely nominal consideration, must be deemed voluntary as to creditors.” To the same effect is Murphy v. Branch Bank of Mobile, 16 Ala. 90, where the consideration expressed was in the deed “for and in consideration of his [the grantor’s] anxiety to provide for his said wife a competent support, in case of any future misfortune and embarrassment and in and for the further consideration of one dollar in hand paid,” etc. The deed being a voluntary conveyance, it is “void per se as to existing creditors without regal’d to the intention of the parties or to the circumstances of the grantor or the amount of his indebtedness or to the kind, value or.extent of the property conveyed.”—Beall et al. v. Lehman, Durr & Co., 110 Ala. 446; Sides v. Scharff Bros., 93 Ala. 106.

It has been too frequently decided by this court to be now a matter of serious doubt, that a purchaser of land at a sheriff’s sale under execution against a debtor who has made, a fraudulent conveyance of the legal title to his vendee may maintain an action of ejectment for its recovery. Indeed, it is the only remedy he has.—Smith v. Cockrell, 66 Ala. 64; Grigg v. Swindall, 67 Ala. 187; Pettus v. Glover, 68 Ala. 417; Betts v. Nichols, 84 Ala. 278; Teague v. Martin, 87 Ala. 599; Goodbar v. Daniel, 88 Ala. 583.

The affirmative charge requested by plaintiff should have been given.

Reversed and remanded.