“In
Aman v. Walker,
There can be no dispute that the contract between the father and son, in the present action, there being nо mistake or fraud, both being
sui juris,
is a, valid and binding one. The record indicates it is being carried out in accordance with its terms. As between the parties, the question of adequacy of consideration ordinarily is not material in the absence of fraud.
Young v. Highway Com.,
There are now modifications and exceptions to the harsh rule — -where a contract is extortionate and unconscionable as to indicate mistake and fraud. An instance of such a bargain is where one bought a horse and agreed to pay a penny for the first nail in his shoes and to double each time for every other nail.
Williams v. Chaffin,
C. S., 1007, is as follows: “No voluntary gift or settlement of property by one indebted shall be deemed or tаken to be void in law, as to creditors of the donor or settler prior to such gift or settlement, by reason merely of such indebtedness if property, at the time of making such gift or settlement, fully sufficient and available for the satisfaction of his then creditors, be retained by such donor or settler; but the indebtedness of the donor оr settler at such time shall be held and taken, as well with respect to creditors prior as creditors subsequent to such gift or settlement, to be evidence only from which an intent to delay, hinder or defraud creditors may be inferred; and in any trial shall, as such, be submitted by the court to the jury, with such observation as may be' right and propеr.”
The stock — $7,000—was assigned, transferred and set over from the father to the son. The consideration was $100, and to support and provide for the father and his wife the balance of their lives and the life of the survivor of them. The book value of the stock is $1.10 on the dollar.
Under C. S., 1009, a, purchaser for value and without notice оf any fraud gets good title by conveyance or transfer from fraudulent vendor. See
Cox v. Wall,
*746
In Bigelow on Fraudulent Conveyances, Revised Edition, at p. 545, it is said: “The courts are not agreed in regard to the effect of undertakings by a grantee
to
support a debtor-grantor by way of consideration for the conveyance of аll or a large part of the grantor’s estate. In New York, Illinois, and elsewhere, it is held that such a case does not make the valuable, or rather the valuable and bona fide, consideration required by the statute to cut off the claims of creditors of the grantor. . . . (p. 547). Tbe exclusion of such a consideration should not rest upon the ground that it may not be valuable, but rather on the ground that, being in effect of the nature of a trust or reservation to the exclusion of creditors or of a trust or a reservation in favor of some one apparently having no estate in the property, and seldom appearing of recоrd, the consideration lacks good faith. This is shown directly by some of the cases, and indirectly by others. Tbe real question then is, whether the nature of the propоsed consideration should fix upon the grantee the duty of inquiry concerning the effect of the transaction. See
Sturdivant v. Davis,
We think the principle applicable in the present action is thus stated: “It has in some jurisdictions been held that where the grantee has in good faith furnished support, be may be reimbursed for the same when the conveyance is set aside (or be held liable merely for value of the land beyond that; of the support furnished).” Bigelow, supra, at p. 546, note, citing authorities.
The subject, with full annotations, is set forth in
Cherry Co. v. Helms,
It is contended by defendant, T. M. Mackorell, that in compliance with tbe contract made with bis father, tbat be in good faith bought tbe stock, without notice or knowledge of bis father’s indebtedness; tbat be paid out and became responsible for (1) Tbe sum of $100, paid at tbe time of tbe sale and transfer; (2) tbe sum of $350, which be became liable on for money borrowed for bis fathеr; (3) tbe sum of $77.55 in cash given to bis father from time to time; (4) tbe sum of $1,044.48 on which be is now liable to tbe corporation for advances to bis father; (5) money expended fоr groceries for bis father and approximating (at tbe time of tbe trial in tbe lower court) $80.00.
We think tbe issues submitted practically correct, so far as they go, but undеr tbe facts and circumstances of this case tbe issue tendered by defendant, as modified below, should have been submitted to tbe jury: “Was tbe defendant, T. M. Mackorell, a bolder in good faith (and for value — stricken out) and without notice of tbe seventy shares of stock *747 mentioned in. the pleadings?” And also an issue: “Did the defendant, T. M. Mackorell, in good faith and without notice, make advances under the agreement with R. J. Mackorell, and if so, in what amount?”
We think the allegations of the complaint, taken as a whole, sufficiently show that the grantor did not retain property fully sufficient and available for the satisfaction of his then creditors, and the motiоn of defendants for judgment as in case of nonsuit at the close of plaintiff’s evidence and at the close of all the evidence, properly refused. C. S., 567. See Wallace v. Phillips, ante, 665.
On a new trial the other matters discussed by the parties can be determined on the evidence as presented. For the reasons given, there must be a
New trial.