Jones v. Wilson

69 Ala. 400 | Ala. | 1881

STONE, J.

The present bill, filed by a creditor, seeks to set aside as fraudulent, a deed to lands, absolute on its face, made by Orme to Sharpe in 1867. The bill was filed in March, 1880. In 1859, Orme became general administrator of the county, and Jones, the complainant, became one of his sureties. As such surety he was sued on the administration bond, for a devastcmit and default committed by Orme, his principal, and was forced to'pay on said account, during the years 1877 and 1878, the sum of three thousand dollars, or more. Orme is dead, and his estate entirely insolvent. The tract of land, sought to be condemned in this suit, furnishes the only means for Jones’ reimbursement. The defense set up by Sharpe’s administrator and heirs is a plea of the statute of limitations of ten years since Sharpe became the owner of the land. The chancellor sustained the plea, and dismissed "complainant’s bill; not on the ground that Jones’ claim against Orme was barred as a debt; but on the ground that Sharpe had had the continuous adverse possession of the lands under claim of right, for more than ten years, when this suit was brought. This, it is contended, and was so ruled by the chancellor, vests- a good title in Sharpe’s heirs, although his purchase aud title were fraudulent in their inception, we consider it unnecessary to announce what would be our ruling, if it were shown that Sharpe and those claiming in his right, had been in open and notorious, or, what is the same thing, in independent, adverse possession of the lands, claiming ownership, for ten continuous years before this suit was brought. That'is not this case. • We have examined the testimony in this cause with great care, and our clear conviction is that there was no real sale from Orme to Sharpe. We think the purpose was to place the title-beyond the reach of Orme’s creditors, while Orme, all the while, was the real owner, entitled to and enjoying the use, products and profits of the estate. Sharpe never was in possession, never had or exercised dominion or ownershijD, and hence never held the property adversely to any one. It is manifest to us, that the whole purpose of the conveyance was to create a secret trust for the benefit of Orme, and that, in fact, Sharpe never intended to assert ownership of the property, adverse to the claims of Orme. Such secret- trust does not clothe the trustee with any ownership or asserted right, which will uphold a claim of adverse possession. — Cummings v. McCullough, 5 Ala. 324; Patterson v. Campbell, 9 Ala. 933; Wiley, Banks & Co. v. Knight, 27 Ala. 336; Huggins v. Perrine, 30 Ala. 396; Crawford v. Kirksey, 55 Ala. 282; Hubbard v. Allen, 59 Ala. 283; Sandlin v. Robbins, 62 Ala. 477; Sims v. Gaines, 64 Ala. 392; Humes, assignee, v. Davis, at last term; Bump oir Fraudulent Conveyances, 39, 212; 1 Amer. Leading Cases, (Sexton v. Wheaton), 49 et seq.

The bill in this case seeks to condemn a tract of land of something over eight hundred acres. As to part of the land, the testimony shows that about the year 1868 Sharpe, through Orme, sold a part of the tract to ILood, and Hood took possession under his purchase. It is not shown whether Iiood paid for the land, or whether he received a conveyance. Hood was not made a party to this suit. To foreclose’his rights, and condenni that part of the tract to sale in payment of Orme’s debt, it was necessary to make him a party. — Hunt v. Acre, 28 Ala. 580; Doe ex dem. v. McLoskey, 1 Ala. 708; Bryant v. Young, 21 Ala. 264. Not having made Hood a party, that part of the tract which the proof shows he had purchased, can not be declared subject to complainant’s claim. The lands purchased by Hood are the northeast quarter of the southeast quarter of section 1, township 13, range 18, and the northwest quarter of the southwest quarter of section 6, township 13, range 19 — in Montgomery county, Alabama.

The decree of the chancellor is reversed, and a decree here rendered, declaring that the complainant is entitled to relief, :and that the deed from Orme to Sharpe, exhibited in the pleadings, was made in secret trust for the benefit of Orme, and with intent to delay, hinder and defraud his creditors. And, with the exception of the lands sold to Iiood, above described, said ■deed is set aside, annulled and vacated.

It is referred to the register to take and state an account of the amount due complainant, with interest thereon to the first •day of the next term of the Chancery Court. All other questions are reserved for decree by the chancellor.