Killian v. Cox

132 Ala. 664 | Ala. | 1902

TYSON, J.

— The bill in this cause was filed by a judgment creditor to subject several parcels of real estate, the proceeds of a. tract of land and a stock of goods, alleged to have been conveyed by his debtor in fraud of creditors. One of the appellants, Kenneth Killian, is only interested in the subjection by the decree of the proceeds of the tract of land described in the ninth paragraph of the bill. It is true his brother Monroe, another appellant, has also an interest in the same matter. But the other appellant, Mrs. Killian, has none whatever. Nor has the appellant Kennetn any Ínteres!- whatever in the several pieces of prope.itv subjected by the decree claimed by Mrs. Killian alone or those nieces claimed by her and Monroe jointly or in common.’

The assignments of error are two in number and are joint. The first of these relates to the overruling of the demurrer to the bill. This assignment is not insisted upon in argument and is therefore waived.—3-Brick. Dig. 40, § 125.

The other assigns as error the final decree condemning the several items of property some of which is held by Mrs. Killian in severalty, others in common or jointly by her and Monroe and the proceeds of the lands described in the ninth paragraph sought to be subjected in the hands of Monroe and Kenneth.

The assignment of errors is, in effect, the complaint of the appellants in this court, and where several unite in one assignment, they encounter defeat unless the assignment is good as to all. If the error affects the appellants separately and not jointly, they should assign . errors separately.—Elliott on Appellate Procedure, §§ 300, 318; 2 Ency. Pl. & Pr. 933; Kimbrell v. Rogers, 90 Ala. 346; Bowling v. M. & M. R’y. Co., 128 Ala. 550. See also cases cited in 1st Rule of Pr. of Sup. Ct. Code, p. 1187; Beachman v. Aurora Silver Plate Mfg Co. 110 Ala. 555. The case last cited is directly in point.

It is shown both by the bill and the evidence that complainant’s debt was in existence when the conveyance for a recited consideration of eight hundred dollars was made by the debtor1 to the lands described in the ninth paragraph of the bill, which it is alleged was conveyed upon a recited fictitious consideration, with the intent to hinder, delay or defraud, when the grantor wa,s insolvent, and that his insolvency was known to the other respondents. The evidence fully establishes tire insolvency of the grantor, and a knowledge of it by the other respondents. The answer of the respondents denies the fraud charged and alleges that the sale of the land was made for the purpose of paying a debt which the grantor was due one Vann on account of his suretyship for one Parish; that all the proceeds of the sale of said land were applied to the payment of the debts of the grantor, and a fair consideration paid for the land.

These averments, in view of the fact that the burden of proof was upon the respondents, were insufficient to overcome the presumption of unfairness and mala fides of the transaction. Affirmative allegation of facts relied ora as constituting the consideration is as essential as Satisfactory proof of their existence. Such allegation must he definite, clear and concise, in its statement of facts, in order that the complainant may be apprised of the defense he is called upon to meet. It is of no moment what the evidence proves, if the facts are not sufficiently alleged.—Gamble v. Aultman. 125 Ala. 372 and cases were cited.

Clearly there is no error in the decree in respect to this property.

The appellant Kenneth having no interest in the other property condemned by the decree and the assignment of error being joint, there being no' error of which he can complain, the decree must be affirmed.