112 So. 752 | Ala. | 1927
The overruling of the demurrer to the cross-bill presents the questions whether the same as amended introduces new, distinct, independent matter, not germane to the original bill; and whether the fraud charged as to the conveyance from J. E. Moody to J. G. Moody is sufficiently stated, and in which it is alleged both grantor and grantee participated.
It is declared of the cross-bill that, if it is merely defensive, the dismissal of the original bill dismisses the cross-bill; that, if the pleading sets up new facts relating to the same subject-matter, and prays for affirmative relief in reference to it, and presents a case for equitable cognizance, for equitable relief which upholds the jurisdiction of the court independent of the original bill, the dismissal of the latter does not carry the cross-bill. Ex parte Conradi,
In Lowery v. May,
The legal effect of the two pleadings, as insisted upon by appellants' counsel, is that the original bill by Cordy Trout sought a sale of land for division between tenants in common, the same not being susceptible of equitable division without a sale, and that the cross-bill as amended sought to have "annulled, canceled, and set aside, as in fraud of his creditors, a conveyance from one of the appellants, J. E. Moody, to the other appellant, J. G., Moody." The cross-bill, however, went further than the stated purpose by counsel. Its prayer is:
"That the attempted conveyance of J. E. Moody of his interest in said land to J. G. or Grady Moody be annulled, canceled, and set aside as being made in fraud of his creditors, that the court order said land sold for division of proceeds of said sale, and that the interest of each of the parties to this cause in and to the lands described in the bill as amended be ascertained by the court, and that it be decreed that he, as trustee, is entitled to one-sixth of the proceeds; and he prays for all such other, further, additional, and different relief as the facts in the case may warrant and equity require, and he prays for general relief."
This relief sought against the said conveyance, was a necessary incident in the ascertainment of the nature and extent of the tenancy in common, the respective interests of the joint owners, germane to the specific object and purpose of the original bill, and did introduce no foreign matter or inconsistent issues; that is to say, the new issue raised by the cross-bill related to the subject-matter of *158
the original bill and was dependent upon the general fact of joint ownership in said lands presented in the original bill. Burke v. Burke,
There is no merit in the grounds of demurrer directed to the mechanical arrangement or manner in which the cross-bill is paragraphed. Pool v. Menefee,
The claim for solicitor's fee, in case of a sale for partition, did not render the cross-bill demurrable. The solicitors' fees that may be allowed on final hearing, for services that inured to the benefit of the trust fund or common estate, and not to that of the individuals (De Ramus v. De Ramus,
A bill by a trustee or assignee in bankruptcy to set aside a fraudulent conveyance may be maintained in a proper case. Cartwright v. West,
The effect of a voluntary conveyance on the rights of existing creditors was considered in Allen v. Overton,
In the instant pleading nothing is averred that shows the injury condemned by the statute; no fact averred as to consideration of the conveyance, or that there was a secret trust reserved to the grantor; no fact averred as to grantor's indebtedness, or of the extent of grantor's ability to respond to creditors, or that the property conveyed was shown to be subject to the satisfaction of his debts; that is to say, no facts are alleged upon which to rest the mere conclusion of the pleader that the conveyance was made and accepted with the intent to hinder, delay, or defraud creditors. In Merchants' Bank v. Parrish,
The court overruling this ground of demurrer cites section 8038, Code of 1923, and Sutterer v. Morris Fert. Co.,
In Flewellen v. Crane,
"The conveyance sought to be vacated is exhibited with the bill, and on its face recites that it is made in payment of twenty thousand dollars, due from the grantor to the grantee. The averments of the bill are, that the grantor was insolvent at the time of its execution; and that it conveyed all his property which was subject to levy and sale; and that it is 'fraudulent and void as against pre-existing creditors,' and was 'made with intent to hinder, delay, or defraud said creditors.' It is now insisted that these averments are insufficient to support the decree vacating the deed — that there is no averment impeaching the bona fides or sufficiency of the consideration expressed in it; no averment that the debt was not real, and the conveyance accepted in payment of it; no averment that there was any secret trust for the grantor, and no averment of any fact which authorizes the mere conclusion, stated in the bill, that the conveyance is fraudulent. Fraud is a conclusion of law from facts stated and proved. When it is pleaded, at law, or in equity, the facts out of which it is supposed to arise, must be stated; a mere general averment, without such facts, is not sufficient. The court cannot, on such averment, pronounce judgment. Kinder v. Macy,
This rule has been adhered to in this jurisdiction. Olson v. Olson,
The allegations of the cross-bill are as follows:
"He alleges that J. E. Moody and others claim to have conveyed all their interest in said land involved in this suit to Grady or J. G. Moody, and he is seeking to hold the same under said alleged conveyance. He is not advised as to whether said conveyance is effectual to pass the interest of the other parties to said land or not. That at the time of the alleged conveyance attempted to be made by J. E. Moody, conveying his interest in said land to J. G. or Grady Moody, he was indebted to C. C. Trout by his note, which was then long past due and unpaid, as well as to other persons; and that said alleged conveyance by the said J. E. Moody was made by him and accepted by the grantee for the purpose and with the intent to hinder, delay and defraud his creditors and said E. M. Moody, the trustee of his estate in bankruptcy, and the same is void as against his said creditors and his trustee in bankruptcy and should be set aside."
Are the allegations that the sale was with a fraudulent intent and void, or made with the intent to hinder, delay and defraud creditors sufficient? The following authorities are to the contrary: Boutwell v. Spurlin Merc. Co.,
In Curran Co. v. Olmstead Scheuing,
"The language employed by the pleader in this case is 'that said bill of sale and transfer by said Percy Olmstead to said First National Bank was voluntary, and the consideration of $5,100 is simulated in whole, or in a large measure; or, if your orators are mistaken as to said consideration being simulated, then your orators allege that said bill of sale was made by said Percy Olmstead to said First National Bank for the purpose of hindering, delaying, and defrauding his creditors, and the creditors of said Olmstead Scheuing, and the said First National Bank of Anniston participated with said Percy Olmstead in said intention of hindering, delaying, and defrauding said creditors.' The second of these alternative averments is manifestly insufficient. To be sufficient, the facts which constitute the fraud must be stated; but it is not necessary to state the evidence which goes to prove those facts."
This authority indicates that grounds of demurrer to the cross-bill should have been sustained.
The case of Sutterer v. Morris Fert. Co., supra, was to the effect that a bill alleging the conveyance was made with intent to hinder and defraud creditors of the grantor need not allege the insolvency of the grantor under the two theories of that bill. They were (1) that the conveyance was voluntary and the recited consideration fictitious; (2) or, if for value, was for an excess of the real value actually paid for the property conveyed and for the purpose of hindering, delaying, and defrauding creditors, and "which purpose was known to said grantee." The sole ground of demurrer was that it was not "averred that the debtor * * * was insolvent at the time of the execution of such conveyance." When the limited issue before the court is thus understood, it is apparent that the last-cited authority is not contrary to the decision in Curran Co. v. Olmstead Scheuing,
I am of opinion that the instant pleading cannot, in reason, be distinguished from that condemned by Mr. Chief Justice Stone in Curran Co. v. Olmstead Scheuing, supra.
The majority indicated below are of opinion that the instant cross-bill is not subject to demurrer directed thereto, and that it is distinguishable from Curran Co. v. Olmstead
Scheuing,
Affirmed.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, BOULDIN, and BROWN, JJ., concur.
THOMAS, J., dissents. *160