61 So. 278 | Ala. | 1913
The bill charges that the entire consideration of the deed from Tyson to his wife was simulated — that is, that the recited consideration of $4,000 was simulated — and that there was no valid assumption of the bank mortgage. If this averment is true, then the conveyance was voluntary and inoperative as against existing creditors, whether fraudulent mala fide or not. If the averment that there was no valid assumption of the mortgage debt was the conclusion of the pleader, the point was not taken by any of the grounds of demurrer. It is also true that the deed recites the assumption of the mortgage debt by the grantee, and as to whether this can be disproved we are not concerned, in passing on the demurrers to the bill, as said bill does aver that there was no valid assumption of the mortgage debt.
While the bill may charge that the conveyance was without consideration, it seems to guard against a failure to prove this averment by attempting to charge
The demurrers as filed to the entire bill as amended were properly overruled, but those filed to so much of the bill as charged fraud mala fide should have been sustained.
Affirmed in part, and reversed and remanded.