104 Ala. 331 | Ala. | 1893
The decree by itself, was no more evidence, as between Weeks and Brown, the sureties, to show that the defendant, Weeks, owed 'Brown anything, at the date of its rendition, than it was to show that Brown owed Weeks. Its only evidential foi’ce, apart from other evidence, was, that Weeks and Brown owed the plaintiff in the judgment or decree. But there was an agreement of counsel in writing on tne trial — to quote its language — ‘ ‘that the allegations contained in the 1st and 2d paragraphs of the original bill of complaint are true, and shall be taken as admitted on the final hearing of the cause, by the defendants, and that the bond set forth in the second paragraph of the complaint was executed on the 11th day of July, 1884.” These admissions cover the following facts : that complainant is the duly qualified administrator of George Brown, deceased; that Stephen Dowty died prior to the 11th July, 1884, and that John W. Hall, was his duly appointed administrator; that he gave bond, as such administrator, with Dorval W. Weeks and George Brown as sureties on said bond, and that the copy of the bond set out in the bill is a correct copy of the original which was duly executed. Said bond was introduced in evidence in place of the original. The introduction of this bond, in connection with the decree, was sufficient to show that the decree was authorized
The burden of proving that these conveyances were not voluntary, but were made in good faith for an adequate consideration, as we have seen, was on the defendants. If actually and not constructively fraudulent, the burden was on the complainant. The complainant introduced no evidence except said administration bond, the record in the Dowty case, to prove the 'decree therein, and the transcript of the record of his case from the Baldwin circuit court; and these, with the effect as we have stated. The defendants, Weeks and wife, examined and introduced the deposition of two witnesses, besides their own.
But, the land as well as the sheep must be covered, and, accordingly, we find Weeks and wife, on the 16th of August, 1887, four days prior to the sheep transaction, conveying to Felix Andry, for the recited consideration of $1,000, the 560 acres of land which he owned. This deed was not acknowledged by the wife, separate and apart from her husband, and, if the lands conveyed constituted their homestead, it was ineffectual to pass the same to the extent allowed by law. A deed thus executed is void as to the homestead. This deed was recorded August 19th, 1887. Felix Andry re-conveyed these lands to Rosalie, the wife of said Weeks, on the 20th of September, 1887, for the recited consideration of $1,050, but the deed was not filed for record until the 10th of August, 1889. If Mrs. Weeks had the money with which
If Andry had paid any consideration for the conveyance from Weeks and wife to him, and if Rosalie, in turn, had paid him any consideration for his conveyance to her, and if the transaction was a real and not a simulated one, he was very competent to prove these facts, and a failure to examine him is suggestive that the proof could not be made by him, if he should swear truthfully. And more striking and suggestive' still is the fact, that Weeks and wife were both examined in their behalf, and neither of them were questioned or deposed as to any fact, touching the consideration and bona fides of these conveyances of land. They denied in their answers the allegations of fraud, and averred that said conveyances were made in good faith for the considerations expressed in them, and yet, offered no proof to show the truth of the allegation, themselves being examined as witnesses.
He dismissed the bill, however, on the ground as stated, that it did not aver that Hall, the administrator of Stephen Dowty, was in default as such, or that he owed anything by virtue of his administration ; that the proceedings in said cause can not be evidence against any of the parties to this cause, except said Weeks ; that the other defendants are entitled to have their day in court, to controvert the issue (that of a devastavit by Hall) on which their liability depends, and the bill, by its averments, did not afford them that opportunity.
From what has been said, it will sufficiently appear in what the learned chancellor mistook the real issue in the cause, and wherein he erred. The real issue was, whether the complainant’s intestate was a creditor of said Weeks,
The question of exemptions was not passed on, and if properly presented, is one which is not likely to be of difficult solution.
Reversed and remanded.