41 Ala. 168 | Ala. | 1867
The declarations and conduct of the defendants in attachment, proved by the sheriff, transpired after the transfer to the claimant, and after the levy, and did not accompany, qualify, or explain any material fact in the case; and the claimant can not be affected by them. The court, therefore, committed no error in excluding them.
There was no error in giving the second charge asked, notwitstanding it too, unexplained, might mislead the jury. A debt is a sufficient consideration to sustain a sale of property; but nevertheless, if a sale of property be made in consideration of a good debt, with a fraudulent intent, it is void against creditors.
We do not think it is necessary for us to notice the other charges given in this case. The points arising, or likely to arise, are covered by what we have already said. While the defendants had a right to transfer their property to their father, in payment of a just debt, they had no right to make such transfer for the purpose of defrauding any creditor.—Young v. Dumas, 39 Ala. 60.
The judgment is reversed, and the cause remanded.
The counsel for the appellee having presented a petition for a re-hearing, we have reexamined the questions arising upon the record, and are constrained to adhere to our former opinion.
It is argued in support of the petition for a re-hearing, that the charge asked by the plaintiff, and refused by the court, was abstract, and that therefore the court committed no error in not giving it. The charge is said to be abstract,
If the question presented were, whether property given without valuable consideration, and in the absence of a fraudulent intent, were subject to an attachment, it would be necessary to prove the existence of the debt at the time of the conveyance; for, in such, case, the conveyance would be good as to all subsequent creditors, and bad as to existing creditors. But, if there was a positive intent to defraud, the conveyance may be avoided by subsequent creditors, and the property subjected “to after-contracted debts.” Williams v. Avery, 38 Ala. 115 ; Huggins v. Perrine, 30 Ala. 396. If, therefore, in this case, there was a fraudulent intent of the parties who made and accepted the transfer, the plaintiffs may subject the property transferred, though their debt had no existence prior to the issue of the attachment; and the claimant can not controvert that the plaintiffs were creditors at that time. Therefore, the introduction in evidence of the attachment, was such proof of the plaintiffs’ character of creditor, as would justify the charge that the fraudulent intent of the parties would vitiate the transfer, and the charge asked was not abstract.
It is next contended, that the charge asked and given is inconsistent with the decision in the case of Young v. Dumas,
It is contedned, also, that the parties could not intend to “hinder, or delay, or defraud creditors,” by securing a just debt, and that therefore the charge contains a solecism. We think not. The agency of a conveyance to secure or to pay a just debt, may be employed to effect a fraudulent purpose; and if so, it is void as to creditors. We think the charge asked should have been given.
The application for a re-hearing is refused.