Wood v. Potts

140 Ala. 425 | Ala. | 1903

SHARPE, J.

It is settled that within tbe meaning of our statute, (Code, 3896, § 2156), a voluntary conveyance is void as to existing creditors of tbe grantor whatever may have been his financial circumstances or bis intent in making tbe same.-Beall v. Lehman, Durr & Co., 110 Ala. 450; Sides v. Scharff, 93 Ala. 107; Wallen v. Montague, 123 Ala. 287; Ruse v. Bromberg, 88 Ala. 619.

For tbe conveyance assailed by tbe bill the only consideration expressed is that of love and affection for tbe defendant and a promise by her to support the grantor during bis life, and no other consideration is shown to have existed. It is well understood that love and affection is not a valuable as distinguished from a good consideration. Under the law as it stood in 1892, when the conveyance was executed, the defendant being a married woman, was incapable of contracting, except with the assent or concurrence of her husband expressed in writing. — Code of 1886, § 2346. If it be assumed that defendant in fact promised support in accordance with the recitals of the conveyance, yet it nowhere appears that her husband, in writing assented to or concurred in that promise, and therefore the same was never enforceable. It was neither of detriment to the defendant nor of benefit to the grantor. Lacking both of such elements the promise did not make a consideration for the conveyance which, as against his then existing creditors, can be deemed valuable. In Bump on Fraudulent Conveyances, § 206, it is declared that “the note of a feme covert is not a valuable consideration although it may be paid subsequently,” and this was held in Howe v. Wildes, 34 Me. 566. In Wait on Fraudulent Conveyances and Creditors’ Bills, § 211, it is stated: “A conveyance by a husband to a wife made in consideration of love and affection and her promise to pay certain preferred claims and to support him, will not be upheld against creditors.” See also Goldsmith v. Russell, 5 De G., M. & G. 547; Penhall v. Elwin, 1 Sm. & Gif. 258.

The lands having passed to defendant from the debtor Wood only by his voluntary conveyance were subject to the satisfaction of the debt of complainants, and they were by the statute (Code, 1896, § 818) authorized to proceed for their subjection without regard to the sufficiency of legal assets belonging to the debtors’ estate. McClarin v. Anderson, 109 Ala. 571.

In the record there is nothing which indicates, the complainants have sought or received any benefit from the deed in question or have by any act or omission caused the defendant to forego any rightful advantage she may have had in respect to the subject matter, or the defense of the suit. Hence, it does not appear that they are estopped to invoke relief.—Robins v. Wooten, 128 Ala. 373.

Evidence legally admitted and competent, supports the final decree. Therefore, if any error was committed in the admission of evidence it was not such as to afford cause for reversal. The assignment of error based on the admission of evidence is too general to merit particular discussion. There was no error overruling the demurrer to the amended bill or the motion to dismiss the same, or in the final decree.

Affirmed.