Pippin v. Tapia

42 So. 545 | Ala. | 1906

HARALSON, J.

— Minnie Pippin and Ed A. Pippin, according to the averments of the bill were, up to the fall term, 1900, of the chancery court of Greene county, lawful husband and wife; that said Minnie, on a bill theretofore filed by her against her said husband in said court for the purpose, ^ obtained a decree divorcing her from him, and they did not, thereafter, live together as man and wife.

In the said bill, said Minnie prayed not only for a divorce, but for alimony and counsel fees, and in aid of her said suit, she prayed for and procured an injunction to be issued against her said husband, whereby he was enjoined from disposing of any of his property pending the suit.

Prior to filing her bill for divorce, the said Minnie had abandoned her husband, and went to Montgomery to live. After the filing of the bill and the issuance of said injunction, the said Ed A. Pippin went to Montgomery, and without knowledge or consent of plaintiff, wlm Avas a creditor of said Ed A. Pippin, as the bill alleges, entered into a contract with bis said wife, and executed tlie deed wbicli is songbt to be set aside in this case. The said, deed ivas a part and parcel of said contract, and the two were executed at the. same time. The deed ivas placed in the hands of a law firm, as an escrow, to be delivered to said Minnie, whenever her said husband violated the terms of said agreement. The contract further recited, “that E. A. Pippin has and does hereby agree to amend his habits and cease all use of intoxicating liquors, and has agreed and does hereby agree, in consideration of the agreement hereinafter (in this contract) made by said Mrs. Minnie Pippin, to execute a deed to an undivided one-half interest in certain lands in said Greene county, Alabama, which are described in said deed, with the condition that such deed, is to be deposited in escroAv, with Messrs. Hill & Hill, attorneys, in the city of Montgomery, to be delivered to the said Mrs. Minnie Pippin, whenever the said E. A. Pippin shall violate his promise to cease the use of all spirituous liquors, a copy of which deed is heréto attached and made' a part of this agreement; and should the said E. A. Pippin faithfully, in letter and spirit, keep said promise for two years from the date of this instrument, then the said Hill & Hill are to return said deed to said E. A. Pippin. The said E. A. Pippin further agrees to support and maintain his said wife in all things as she should be, and should he fail in this respect, he agrees that Hill & Hill shall then deliver as a perfect conveyance, said deed to said Mrs. Minnie Pippin. The said E. A. Pippin also agrees to pay the counsel fees and costs, for which Mrs. Pippin is liable in said divorce suit ,said counsel fees amounting to eighty dollars.”

In consideration of this agreement and the execution of said deed, Mrs. Pippin agreed to return and live Avith her said husband as long as he should keep his promise to cease the use of intoxicating and spirituous liquors; to have the injunction in said divorce suit dissolved and continue said divorce suit for the period of two years, and if her said husband should keep his agreement as to intoxicating liquors during that time,, to dismiss her said suit. It was further agreed, that should Mrs. Pippin at any time during the period of two years, make affidavit that her said husband- had violated his promise as to the use of intoxicating liquors, or failed to support and maintain her as stipulated in said contract, and present and file the same with Messrs. H'ill & Hill, or either of them, that this should be sufficient- and perfect evidence of the fact, and said Hill & Hill should thereupon at once, deliver said deed to Mrs. Pippin as a perfect and complete conveyance, which agreement should be recorded in the office of the judge of probate of Greene county.

It is alleged that about Maich, 1900, Mrs. Pippin made an affidavit before an officer duly authorized to administer it, that her said husband’ had violated his said agreement not to. drink intoxicating liquors, and delivered the same to Messrs. 1-Iill &■ Hill, who immediately delivered said deed to her, and she, immediately filed said deed and affidavit in said probate office, where they were duly recorded.

The bill alleges that the said E. A. Pippin is insolvent, and lendeied himself so by the execution of said deed, and has remained insolvent ever since.

The- complainant, being a creditor of said E. A. Pippin, by his bill assails said deed as -a voluntary conveyance, made without valuable consideration, .and that-it is null and void as to complainant; that the property conveyed in said' deed is of the value of $1,500 in excess of the amount said Pippin had the right- to convey to his wife in lieu of alimony, and-as to such excess the deed was voluntary. ■ ' ; ■

The deed was not voluntary. A voluntary deed is one “founded merely and exclusively on. a good,, as distinguished from a valuable consideration, on motives of generosity and affection, rather than on a benefit received by the donor, or detriment, trouble, or prejudice to the donee. If the donor receives a benefit, or the do-nee suffers detriment, as the. consideration of the conveyance, the consideration is valuable,' not good merely. However, inadequate such consideration may be — however trivial the. benefit to the one, or the damage to the other, the conveyance is not voluntary.”—Bibb v. Freeman, 59 Ala. 615; Early & Lane v. Owens, 68 Ala. 174.

Tliat E. A. Pippin received value for tbe deed be executed to bis wife cannot be Avell questioned. He procured tbe dissolution of tbe injunction against bis making sale of any of bis property,, during tbe pendency of tbe suit against him by bis wife for a divorce. •• Tbe dissolution of tbe injunction was also a detriment to Mrs. Pippin, as slie placed tbe property in tbe bands .of lier husband, win» might thereby defeat tbe recovery from bim of alimony and maintenance. Tbe settlement of tbe affairs between husband and wife, such as existed between these parties, Avas a consideration for tbe execution of said deed of inestimable value, particularly to tbe husband, and one to be encouraged' and not condemned. —Barbour v. Barbour, 49 N. J. Eq. 429, 24 Atl. 227; Adams v. Adams, (N.Y.) 43 Am. Rep. 675; Hobbs v. Hull, 1 Cox Ch. Cas. 444; Jodrell v. Jodrell, 9 Beav. R. Ch. Cases, 45.

Tbe bill does not aArer that tbe deed was made “Avitli tbe intent to binder, delay or defraud” the defendant, or any creditor of tbe grantor, and even if tbe bill contained such an allegation, and it were proved, tbe sale could not be set aside at tbe instance of a creditor, where a valuable consideration bad been paid for the property, unless it Avere averred and shown, that- the purchaser knew of and participated in the fraudulent intent of tbe seller. Tbe burden of making this proof is on the attacking creditor.— Simmons v. Shelton, 112 Ala. 291, 21 South. 309, 57 Am. St. Rep. 39. “An embarrassed or insolvent debtor may sell bis property, and if tbe sale be an honest one, in good faith, and for a valuable consideration, it is not void.” —14 Am. & Eng. Ency. Law (2d Ed.) 204; Allen v. Riddle, 141 Ala. 621, 37 South. 680.

It is claimed that tbe value of tbe property conveyed was in excess of tbe alimony by $1,500. Tbe defendant was entitled, if successful in her divorce suit, to temporary and permanent alimony and to counsel fees. Por a wife to give up Avhat this one did, in entering into said contract,' and surrendering tbe rights she did, Avas a legitimate sirbject of contract betAveqn her and her husband. Even if she demanded a large price to again con-, ditionally submit herself to- a husband who hád blighted her life by debauchery in strong drink, on bis promise of reformation, taking tlie deed be executed to her as an .earnest of bis good faitb and fidelity, a court of equity would be very unwilling to set tbe deed aside, even if tbe consideration she demanded and received was more than tbe alimony that might have been awarded to her, if she had never entered into such a contract. Tbe consideration for such a surrender on her part was a matter of legitimate dealing between her and her husband, if fairly and not fraudulently conducted by her, and if she demanded much for so doing, the creditors of tbe husband have no right to complain of her. It was the same as a purchase for cash on her part, entered into' with no fraudulent intent, so far as appears.

It is charged that the grantor in said deed, conveyed substantially all his property to his wife. If that, were a fact, it made no difference under the averments of the bill, so far as she was concerned, but, by these aver-ments, it appears that said Pippin owned other' properties besides that embraced in said deed, to the value of between eight and nine hundred dollars.—Shealy v. Edwards, 75 Ala. 412; Inman v. Schloss, 122 Ala. 468, 25 South. 739.

No error appearing, the decree of the court is affirmed-

Affirmed.

Weakley, C. J., and Dowdell and Denson, JJ., concur.