136 Ala. 657 | Ala. | 1902
— The present appeal is taken from a. final decree of the chancellor rendered on the pleadings and proofs. The theory and purpose of the bill is to compel contribution by a co-surety, and to that end to ' set aside an alleged fraudulent conveyance made by the co-surety in his life time to the respondent. In order to a. better understanding of the case before entering upon a discussion of the questions presented for our consideration, we will here state some of the facts shown by the record and concerning which there, is no dispute. And it may he here remarked, that in making such statement, we have copied in part from the statement of facts
On August 11th, 1892, said J. P. and J. S. Timber-lake made final settlement of their administration of the Bunn estate in the probate court of said county of Jackson, on Avhich settlement moneyed decrees Avere rendered in large sums against said administrators', and in fervor of John T. and Beulah Bunn, heirs and distrib-utees of said estate. At the time of said final settlement, said administrators, J. P. and J. S. Timberlake, OAvned about one thousand acres of farm lands situated in said county of Jackson, and the said Timberlakes not having the money Avith Avhich to pay off said decrees against them, on September 9th, 1892, at the instance of the then remaining sureties on their said administration bond, executed to their said sureties a mortgage of indemnity, in and by which they conveyed said lands to Wm. Washington, T. N. Allison, and S. C. Norwood, for the purpose pf saving harmless their said sureties. This mortgage among other proAfisions and conditions contained the following: “To have and to hold to the said
The recited consideration in the deed- of May 17th, 1887, from Samuel 0. Norwood to his son, the appellant here, was the assumption by the grantee of the payment of certain specified debts of the grantor enumerated in said deed, and an additional cash consideration. The total recited consideration was $37,320, the aggregate amount of the debts enumerated being $23,500, the balance recited in the deed as having been paid in cash being $13,820. The property conveyed consisted mainly in lands, only a small proportion being personal property. The lands conveyed consisted of different tracts, and are in general described by government numbers, and in some instances by metes ancl bounds. Following the description of the lands, the deed recites: “The foregoing described lands contain in all 2440 acres more or less, and all are situated in said county of Jackson and State of Alabama, and which said lands are valued by
With this preliminary statement of facts, we will proceed to a consideration of questions raised; other facts shown in the record will be adverted to in the course of discussion as occasion may call for them.
It is first insisted by appellant, that complainant is not entitled to maintain this suit because, as it is contended, he has not first exhausted the security afforded bj the mortgage of indemnity executed by the Timber-lakes to the sureties on their bond. And it is further contended that the sale of the lands embraced in the mortgage, by J. S. Timberlake and the application of the proceeds to the probate court decrees in favor of the Bunn heirs, operated only a sale of the equity of redemption and that the legal title still remained to be sold. It is sought by this contention to invoke the doctrine as stated in Vandiver v. Pollak, 107 Ala. 559, that “whenever the relation [of suretyship] exists, if there be not in the circumstances of the particular case, something rendering it inequitable, if the party seeking contribution, has security, or the means of indemnity derived from the transaction in which the common liability had its origin, it is a moral and legal duty to appropriate them [the security fund] to the discharge of the liability.” There can be no doubt of the equitable doctrine, that where one surety is possessed of security against the common liability or has the means of indemnity in his control, it is his duty to appropriate the security to the common liability before seeking contribution from his co-surety. But the facts here take the case before us, without application of this principle, and differentiate it from that of Vandiver v. Pollak, supra, and like cases. In. the first place, the mortgage of indemnity executed by
The next insistence in argument by counsel for appellant is, that, the respondent was a bona fide purchaser for value without notice. At the date of the conveyance here assailed as being voluntary and fraudulent, to-Avit, May 17th, 1887, the grantor, S. 0. Nonvood, veas a co-surety Avith complainant’s intestate Wm. Washington, on the administration bond of the Timberlakes. This relationship of co-surety, as was held on former appeal in this ease — 128 Ala. 383 — made the complainant’s intestate a creditor of respondent’s grantor, S. C. Norwood, within the meaning of the law against fraudulent conveyances by debtors. The relationship of creditor and debtor being established, the burden of proof as to the bona fieles of the transaction assailed rested upon the respondent. It may he here stated that as to- that part of the recited consideration in the deed representing the indebtedness of the grantor assumed by the grantee, it is shown
Affirmed.