53 So. 790 | Ala. | 1910
This is the case of a creditors’ bill, filed by J. H. McDaniel and G. E. McDaniel, doing business as McDaniel & Son, against J. W. Martin and P. E. Pulsifer, doing business as Martin & Pulsifer, and J. W. Martin and F. E. Pulsifer personally, and Clark H. Pulsifer, Grant Pulsifer, and Ardell Pulsifer, seeking to have a conveyance of real estate from F. E. Pulsifer to his four brothers and sister, above named, declared void as a fraud on said complainants as creditors, and to have the property conveyed sold to meet judgments held by McDaniel & Son against the firm of Martin & Pulsifer and J. W. Martin and F. E. Pulsifer individually. Upon a hearing on the pleadings and proof, the judge of the lower court decreed the relief prayed for, and from this decree the respondents prosecute this appeal.
From the pleadings and proof it appears that in the fail of 1906 the respondents J. W. Martin and F. E. Pulsifer formed a partnership for the sale and installation of waterworks systems for country and suburban homes, and bought considerable machinery from the complainants, McDaniel & S'on. Martin was the business head of the firm, managed the money affairs, and had charge of the general business. Pulsifer was the practical man' and installed the machinery, being ah-
On the 23d day of April, 1908, respondent F. E. Pul-sifer executed a deed conveying his one-sixth undivided interest in certain lands to his brothers and sister, the other respondents to the bill, for the consideration of $2,500 cash in hand paid. We conclude from the evidence that these brothers and sister knew' that McDaniel & Son claimed that Martin and Pulsifer owed them in some amount at the time the $2,500 was paid and the deed executed and delivered, and that the consideration was in fact paid. There was an incumbrance on the land when this interest was sold, and F. E. Pulsifer paid back to his grantors $500 of the money to discharge the amount of the debt which his share that he had sold was liable for. as between the said Pulsifers. There is no evidence tending to show that the said F. E. Pulsifer was insolvent or in failing circumstances; nor is there any evidence tending to show that he was converting his property subject to execution and sale, into
It is true that in this transaction the burden is upon the respondents to show that a bona fide valuable con-si d'eration was paid; but, when this duty was performed, the burden of showing that the sale was made by F. E. Pulsifer with intent to hinder, delay, or defraud his creditors, and that this intent was participated in by the grantees, rested upon the complainants; and they have failed to carry this burden. The presumption is, therefore, that it is not true. In this state voluntary conveyances and gifts are declared by law to be void as to creditors of the grantor or giver, without regard to the solvency or insolvency of the grantor or giver. But this state has never applied the same rule in the case of conveyances upon a bona fide valuable consideration. When such a consideration is shown, then the burden is upon the complainant creditor to show affirmatively that the intent of the grantor, or effect of the conveyance, was to hinder, delay, or defraud his creditors, and that the grantee or grantees knew of such intent or effect, or was in possession of the knowledge of facts, which would put a reasonably prudent person upon inquiry, which, when followed up, would lead to the knowledge of such intent or effect.
In the case sub judice there is no proof that F. E. Pulsifer was insolvent or in1 failing circumstances at
As tending to show fraud the complainants insist that the erasures of certain figures in the bond for title, and the substitution of others, show that the transaction was not bona fide. It is the contention of appellees here, complainants below, that the bond for title was made and dated in the year 1908;-and, in order to make the original land trade- antedate the debt, the respondents, or some of them, scratched out the “8” and substituted a “7All of the witnesses, cognizant of the facts swear that such was not the case. They say that the original date was 1906; and we can see, after careful examination with a microscope, no evidence upon the paper itself what the original number was that was scratched out. The erasure seems to have. been complete. The respondents contend that in 1906 — in the fall of that year — respondents Avent to their lawyer to get their contract with reference to this land in writing, and that he then Avrote out a skeleton, so to speak, of a bond for title, and dated it, as to the year, 1906; that upon finding that he would have to make investigation of the records in the probate office to get a proper description of the lands their laAvyer informed them that he would charge $10 for the work; that respondents then decided not to incur this expense and departed; that on April 11, 1907, they returned to their lawyer and decided to execute the bond for title; that the
We find, also, that in tbe condition of tbe bond it is stated that tbe nóte given for tbe purchase money was due and payable on the 1st day of January, 1908, and provides that, if tbe said purchasers (naming them) shall pay said note Avhen tbe same becomes due, then, etc. From all appearances, this date for tbe payment of tbe note was Avritten when tbe bond for title was written, with tbe same ink and pen. So, if tbe contention of tbe appellees is true, then the note fell due, for the payment of tbe purchase money, several months before the bond for title was executed; and yet tbe condition expressed was that “if tbe said Grant Pulsifer, Guy Pulsifer, Clark H'. Pulsifer, Ardell Pulsifer, and Jack Pulsifer well and truly pay tbe said note when tbe same becomes due, and if said Frank E. Pfilsifer malees and delivers to them a fee-simple title to tbe above described land, then this bond shall be null and void; otherwise, to remain in full force and effect.” This shows' that tbe note for tbe purchase was to fall due at a time subsequent to the execution of tbe bond. We
The appellees contend, further, that the bond for title was not properly admissible in evidence under the pleadings in the case, as there was no allegation that there was any bond for title. Under our view of the casé, it is immaterial whether the bond for title is admitted or not. The evidence shows that, at the time of the execution of the deed, the grantor received, as a consideration therefor, the sum of $2,500 in cash. This being true, and no fraud, hindrance, or delay having been .shown by appellees, the conveyance must be upheld. It is true the bill alleges, and the proof shows, that complainants had obtained judgment against respondent F.' E. Pulsifer; but the bill does not allege, nor does the proof show, that any attempt by execution has ever been made to collect this judgment. No proof of the insolvency of F. E. Pulsifer having been made, or that he was in failing circumstances, or that he converted his property subject to execution into money, so that the judgment could not be collected by execution, the decree of the lower court must be reversed, and a decree here rendered dismissing the complainants’ bill without prejudice, which is accordingly done.
^Reversed and rendered.