Little v. Sterne & Co.

125 Ala. 609 | Ala. | 1899

SHARPE, J.

-Thestatute (Code, section 818) conferring on creditors tlie right to maintain a bill in equity to subject a fraudulent debtor’s property to their debts, does not confine the remedy to eases where the property had been alienated by a conveyance so perfect in form or execution as to pass the legal title, but by its express terms the jurisdiction is extended to fraudulent attempts to transfer or convey. It may be conceded that to come within the meaning of the statute the attempt must be such as would hinder or embarrass the creditor’s remedy at law, and that when land is the subject matter of the attempted conveyance there must be a writing which would transfer an interest, legal or equitable, as between the parties. The present bill, however, while not alleging distinctly the execution of a conveyance by the debtor, Little, does allege that the instrument it assails purported to convey the land described and that it was signed by him. Such an instrument, though pot witnessed. or acknowledged, may be operative as between the parties to convey an equitable interest, enforceable in equity as a contract to convey. — Goodlett v. Hansell, 66 Ala. 151. The probable effect of such apparent equity would be to defeat a sale at an adequate price under complainant’s execution and, therefore, the instrument creating it is a proper subject for their attack in equity.

A part of the lands sought to be reached is sufficiently described, and that there is uncertainty in the description of another part is not ground for objection to the whole bill; nor is the bill subject to any grounds of demurrer assigned to it as a whole. None of them raise the question as to whether the facts constituting the alleged fraud are sufficiently set forth. Such a question, however, is raised bj^ the demurrer to that part of the bill which relies upon inadequacy rather than a total lack of consideration for the transfer.

In charging fraud the rule is that mere conclusions, as that a conveyance is fraudulent, or that it was made with fraudulent intent will not suffice against a proper demurrer.- — Pickett v. Pipkin, 64 Ala. 520; Phoœnix Ins. Co. v. Moog, 78 Ala. 284; Flewellen v. Crane, 58 Ala. 627. Whether the complainants’ claim accrued before or after tlie conveyance by G. M. Little does not clearly appear from the bill, but in neither case are the facts alleged apart from the general allegation of intent, sufficient to connect Mrs. Little as a purchaser for a valuable consideration with the fraud. Her relationship to the grantor raises no presumption of fraud which would help the pleading, whatever effect it may have as a fact in evidence. — Teague v. Lindsay, 108 Ala. 266. To have made a mere 'bad intent injurious to complainants as future creditors, it must have been directed to the creation of a future indebtedness and the hindrance of its collection. If complainants were existing creditors, Mrs. Little, as a purchaser from the debtor for a valuable, though inadequate consideration, would be protected unless she had knowledge, actual or constructive, that 'he was insolvent or in failing circumstances, or unless she had knoAvledge of and participated in a scheme on his part to hinder, delay 'and defraud his creditors. — Yeend v. Weeks, 104 Ala. 331; Seals v. Robinson, 75 Ala. 363; Dickson v. McLarney, 97 Ala. 389; Kelly v. Connell, 110 Ala. 543; Beall v. Lehman, Durr & Co., 110 Ala. 446. Lacking averment of such particular facts, the demurrer to the part of the bill referred to it well taken. The decree so far as it overruled the demurrer interposed to a part of the bill will be reversed and one here rendered sustaining that demurrer and allowing thirty days within which the bill may be amended. The appellees will pay the costs of the appeal.

Iteversed and remanded.