128 Ala. 373 | Ala. | 1900
The bill in-this -case -seeks to have certain deeds -declared fraudulent. The complainants’ predecessor was a creditor-of Council B. Wooten, the alleged fraudulent grantor. The only other creditor which Wooten is shown to have had at the time of the execution of his deeds was one Mrs. Steele. Her debt was evidenced by a promissory note upon which she had brought suit 'shortly before the deeds were made by Wooten. It may be conceded for. the purposes of this case, that the debtor Wooten’s deeds were fraudulent as against the complainants and Mrs. Steele, his only then existing creditors. After the execution of the several conveyances here assailed, Mrs. Steele reduced her debt to judgment and accepted in settlement of it a note and mortgage upon the lands, executed by W. A. Wooten, the alleged- fraudulent grantee, a portion-of which mortgage debt was paid by him, and'the balance by -draft drawn by .C. B. Wooten in her favor upon the complainants. Thi-s draft was drawn, and paid by the complainants about two years -after the execution of the alleged deeds, • and constitutes practically the debt which . complainants seek to enforce by their bill, the debt due them by.C. B. Wooten when he executed the deed disposing of the lands having been paid by W. A. Wooten, the alleged fraudulent grantee.
It is not insisted by-the complainants in this court that they acquired any of Mrs. Steele’s rights which she-may have had to have declared the conveyances fraudulent and void. Indeed if such insistence was made it could avail them nothing, for the reason that Mrs. Steele ratified the transaction. A short history of the transaction between W. A. Wooten and the complainants- will suffice to show a confirmation by them of his title to the lands sought to be subjected by the bill. Complainants and their predecessors in business were for many years commission merchants in [the
A fraudulent conveyance is merely voidable, and 'consequently capable of confirmation either by assent at the time or by subsequent ratification.’ As said by Mr. Bump in his work on Fraudulent Conveyances, section 456: “Although a creditor is not a party to a fraudulent transfer, yet he may subsequently elect
* But if with notice of the fraud either actual or constructive, he makes any agreement upon consideration confirming the transfer, or any statement or agreement to that effect, upon the faith of which the grantee acts as he would not otherwise do, or under such circumstances that his subsequent assertion or his rights as a creditor, if permitted, would operate as a fraud, he will be held to have confirmed the transfer. The confirmation need not be direct and express, but may be implied from the manner in which the parties, deal with the property.” See also Oliver v. King, 8 De Gex, M. & G. 110; Phillips v. Wooster, 36 N. Y. 412; Beaupre v. Noyes, 138 U. S. 401; Freeland v. Freeland, 102 Mass. 477; Butler v. Hildreth, 5 Metc. 49; Snow v. Lang, 2 Allen 18; Harvey v. Varney, 98 Mass. 118; Morgan v. Abbott, 20 N. E. 165; Warren v. Williams, 52 Me. 349; Butler v. O’Brien, 5 Ala. 316. In Kahn v. Peter, 104 Ala. 523, the creditor advised the making of the conveyance, and afterwards sought to have it declared fraudulent. lie was held to be es-topped upon the ground 'that lie had assented to it. Confessedly a subsequent ratification or confirmation of a fraudulent conveyance with notice or knowledge of all the facts, is the equivalent of an assent or concurrence to its being made in the first instance. Omnis
The decree of the chancery court' is- reversed, and a decree will be here rendered dismissing the bill.
Reversed and rendered.