104 Ala. 140 | Ala. | 1893
On January 3, 1889, Yon. L. Thompson, then engaged in the book, stationery and printing business in Anniston, Ala., sold and conveyed to his mother, C. A. Thompson, the bulk of his stock of goods, and assigned the residue of his assets to J. H. Nunnelee, as trustee for the benefit of his creditors. The recited consideration of the deed to his mother was its acceptance by her in payment of an indebtedness of $8,977.20, borrowed money ; $980, due her for the board of certain hands employed in the printing office, and $360 for house rent. At the time of this sale, V. L. Thompson was indebted to the complainants and others, for merchandise purchased during the year 1888, amounting to about $14.000. The complainants file the bill to vacate the sale to the mother, as fraudulent. It avers that the alleged indebtedness mentioned as the consideration of the sale was largely, if not wholly, fictitious and simulated, that the goods delivered were greatly in excess, in value, of even the amount mentioned in the deed, and that the execution of the instrument was a fraud against the creditors and was designed and executed for the purpose of hindering, delaying and defrauding complainants and other creditors, and not for the purpose of paying off any just demand from V. L. Thompson to his mother, and that she accepted said instrument and the property conveyed therein with a lull knowledge of the condition of her son and his purpose in making the same. It is further averred that C. A. Thompson has not had, since the manhood of her son, the sum of $8,977.20 in cash, and ñas never loaned him any such sum ; and that the
Upon this statement of the case, without more — with the consideration of the sale challenged by the bill, in the manner stated — it was incumbent upon Mrs. Thompson, thus dealing with her son, to clearly satisfy the mind of the chancellor, first, by full, explicit and direct answer to the bill, and, next, by proof, of the same character, that the sale to her was what it purported to be— a real sale in payment of a valid, subsisting indebtedness actually owing to her by her son, not materially less in amount than the fair cash value of the goods sold; and to this end, the chancellor should have required her to show clearly that she had the means, and how she acquired them, to make these large advances to a son just setting out, as he did, and whose ventures, under the eyes of herself and husbadd, so soon terminated in such disastrous results. We can conceive of nothing simpler or easier for her to do, if it were true that she made the alleged advances', then to show clearly and in detail, and to the mind’s entire satisfaction, when and where she obtained the money, and that her condition aud ability were such as enabled her to make them. On the contrary, the difficulty of an undertaking on the. part of creditors to prove fully and. directly .that she did not have •the means; will be readily appreciated. The' means' of proof being in her hands, she should have been required to use them. This principle’ pervades past decisions of •this court on the. subject. Calhoun v. Hannan, 87 Ala. 277 ; Hubbard v. Allen, 59 Ala. 283; Bell v, Kendall, 93
The case of Cartwright v. Bamberger, Bloom & Co., 90 Ala. 405, was a bill in equity by creditors of an insolvent merchant to set aside an attachment levied upon the goods, as collusive and fraudulent. Cartwright, who sued out the attachment, was not related by blood or marriage to the insolvent, but sustained peculiarly intimate and confidential relations to him. His answer to the bill, setting up the validity of his claims upon which the attachment was based, was general. This court, speaking through Judge Somerville, said : “The defendant Cartwright’s answer to the bill nowhere explains with sufficient certainty the consideration of the large debt which he claims to hold against the defendant in attachment, the very execution and bona fides of which were challenged by the complainant’s bill. It was charged that this demand was largely simulated — having no reality of existence except in appearance merely — except for a very small sum. The answer should have met the charge fairly and without evasion. The matter must have been within the knowledge of the claimant. He should not only have denied the fact of the alleged debt being feigned, and have asserted the valuable character of the consideration, but he should have stated fully and without evasion, the nature of such consideration, whether it was for money loaned, labor done, for goods or other property sold, or otherwise, and-the particular nature and kind of service or property, if any. The answer, in this particular, to say nothing of other defects in its averments, was insufficient to justify a dissolution of the injunction.”
The case of Harrell v. Mitchell, 61 Ala. 270, supra, though a case of a sale upon a present cash consideration, in which the actual payment of the alleged consideration and ability of the purchaser to make it were disputed by existing creditors, is not unlike the present, in the principle we extract from it. Brickell, C. J., said in that case : “It is so easy for parties standing in the relation of grantor and grantee to feign a consideration for the transfer of the property of the one to the other, and to fabricate the evidence of its payment, that the transaction cannot be sustained, unless it is shown that there was a real adequate consideration actually paid;
Guided by the principles we have announced let us examine the present record. We have stated substantially what the bill charges in reference to the consideration of the sale in question. C. A. Thompson and V. L. Thompson filed a joint answer. This answer, after reciting alleged embarrassments of V. L. Thompson during the year 1888, employs about the following language, touching the creation of his indebtedness to his mother: “From time to time respondent had gotten relief from his financial embarrassments by calling upon his mother, O. A. Thompson, who had considerable means, and who usually responded by assisting him whenever it was
But let us pass from the answer to the evidence, and see if a better case has been made. Here we find new claims advanced not hinted at in the answer. Instead of these alleged advances having been made to relieve the son’s financial embarrassment and distress, into which he had fallen in the prosecution of his business, we find that the largest item consisted in the sale to one Binford on the 1st of April, 1887, of a third interest in some land in South Anniston claimed to belong to Mrs. Thompson, but' the title to which was in her husband , J. D. Thompson, at the price of $3,000, in part payment of the $4,683.50, the price of the stock of books, station
We have seen what account the answer gives of the sources of income which, it is said, enabled Mrs.Thompson to make these advances to her son. We gather from the evidence, substantially, the following history. C. A. Thompson, and her husband, J. D. Thompson, and their family removed from Geor’gia to Union Springs, Ala., sometime in 1879. While there, whether the whole time or not we are not advised, they carried on the hotel business. The witnesses, viz.,’her husband, her son and herself, say that she carried on the hotel business, but-it does not appear that he, the husband, was engaged in any other business, and there is quite enough in the record to satisfy us that he was, generally, the managing
But, it is insisted that means of making these loans were derived also from profits on real estate speculations. Two such speculations are brought to light — no other. First, the Aderhold property was bought at $1,666.66, and sold at $3,000 ; and there is no doubt that Y. L. Thompson received this $3,000, which was paid by Bin-ford, to whom the land was'sold, in a stock of books, stationery &c., transferred to V. L. Thompson, and with which he began the ■ book and stationery business on April 1, 1887. This is all brought out by the complainants. The written contracts which explain the whole transaction and show that the stock of books &c., were bought with this land for V. L. Thompson, to set him up in business, were not produced by respondents, but were by the complainants.
It seems there was some subsequent improvement of the hotel lot in Anniston, of which we have a very undefined idea; and in order to make the improvement they sold a part of the lot and mortgaged the rest of it, and used the proceeds of the sale and the money borrowed for that purpose. There is no specification of any other sale or speculation.
■ Again : it is said Mrs. Thompson realized large revenues from keeping hotel in Anniston, and renting out the hotel. The evidence on this subject is about as vague and indefinite as it could well be presented. The hotel, as we have seen, was built late in 1885. The Thomp
Under the conditions thus shown, the proposition is, that Mrs. Thompson loaned to her son, from May 1, 1886, to January 1,1889, the sum of $13,880. It might be enough to say that she has, by no means, shown her ability to make such loans. When we come to examine the direct testimony, by which they are attempted to be supported, we find the deposition of J. D. Thompson first appears. When asked to state the dates and amounts of the loans, he answers : “ I cannot give the amounts and dates of such advances without looking at a memorandum of them which I have. (Witness reads from memorandum and answers as follows :) ” He then proceeds to set forth an irregularly stated list of loans, giving the exact date and the amount of each, the first six of which run from May 1, 1886, to December 14, 1886, inclusive, aggregating $1,340 ; then February 24, 1887, $190; then April 1, 1887, Olmstead notes, 8 of them, $800; then June’ 11, 1888, $125; then May and June, 1888, Hawk’s rent notes, $200 : the next two items in November and December, 1888, $1,275 ; then rent for' dwelling in 1888 and 1889, $360 (1889 being practically after the bill of sale was made) ; then, without date, board for clerks in store and hands in printing office, $960 ; then, without date, services of “my” minor son, R. Dupont Thompson, $360. He then goes back to to 1887, and states, June 27, 1887, cash loaned, $750; then back to February 5, 1887, $445 ; then three loans in March, April and July, 1887, aggregating $1,840 ; then April 1, 1887, real estate, $3,000. (This is the Aderhold property with which the stock of books, etc., was bought). Then 1888 is taken up again, and from January 5th, to October 1st, inclusive, seven loans are stated, aggregating $2,210, which with the
Next comes the deposition of Mrs. Thompson, and here we find a literal adoption of the irregularly stated and disjointed account brought forward by J. D.Thompson, set out in her answer to the interrogatory, item by item ; and exactly the same thing is found in V. L. Thompson’s deposition; notone of them essaying to give any explanation whatever as to how the evidence of these loans was preserved. The only specific statement we have, is from V. L. Thompson, wherein he says, that when he borrowed $1,000 from his mother, on January 5, 1888, he is certain $800 of it was obtained by- her from her father, for she remarked at the time, that it was. We remember the fact that the $800 was received ‘by her from her father in 1886 ; so that if the witness is correct, she retained this money in her possession for 18 months, or more, during a time in which the undisputed proof shows Mrs. Thompson was pressed with debt. We think J. D. and C. A. Thompson set their son up in business, by letting him utilize the Aderhold land with which to buy his stock, but that he paid them back before the crash came.
We will not further enlarge this opinion. The evi-. dence leaves our minds without the least doubt that the decree of the chancellor is right; and it is accordingly affirmed .