York v. Leverett, 48 So. 684

York v. Leverett

48 So. 684 | Ala. | 1909

DENSON, J.

On the 2d day of October, 1901, H. W. Armstrong, for the agreed price of $960, sold and conveyed to Sam Wallace the lands upon which it is sought by this bill to have a vendor’s lien declared. The price was not paid in cash; but, by agreement between Armstrong and Wallace, Wallace on .that day executed three promissory notes, each in the sum of $320, in which a vendor’s lien is reserved, and payable, respectively, to Jno. S. Armstrong, Mrs. A. J. McClintock, and Mrs. A. I. Miller, children of H. W. Armstrong. The notes were delivered to the payees, and in due course of trade were transferred to J. M. Leverett, the complainant in this bill. On the 22d day of October, 1903, Sam Wallace, without- having paid the notes, conveyed the lands to the respondent E. York on a recited consider ation of $2. The bill avers that at the time the deed to York Avas executed Wallace was insolvent, and' that he made the deed with the intent to hinder, delay, and defraud his creditors, and to defeat the lien of the notes, which were given for the purchase money. It is also shoAvn by the bill that the consideration for the land,as set forth in the deed from Wallace to York, was a grossly ■inadequate price for the property conveyed, and that the property was reasonably worth $1,500 or $2,000.

It seems clear, upon reason and authority that the averments of the bill place the grantee, York, in the attitude of a mere volunteer, so far as the rights of prior creditors of Wallace are concerned. When a court of chancery is called upon to set aside a conveyance upon *532the ground, of fraud, it takes judicial notice that such a pecuniary consideration as $2 is merely nominal, when there is a transfer of so much value as in the conveyance under consideration. As was said in the case of Kinnebrew’s Distributees v. Kinnebrew’s Adm’rs, 35 Ala. 628, 637: “It is to he observed that a deed may be founded on some consideration, and yet still come within the technical definition of a voluntaiy instrument. * * * It is a necessary inference from the authorities that, when a valuable consideration is necessary to support a deed, the bare recital of a nominal pecuniary consideration will not he regarded as evidencing such valuable consideration. This doctrine is not at war with' the prin ciple that the smallest actual consideration of benefit to the promisor is sufficien to support a promise.” — Goodlett v. Hansel, 66 Ala. 151, 160. It thus appearing upon the face of the bill that complainant’s debt was made prior to the execution of the deed attacked, and was a valid outstanding debt against the grantor at the time the conveyance was made, and that the grantee in that conveyance is a mere volunteer, the bill is sufficient in its averments, so far as the objections made to it by the demurrer are concerned, and the chancellor properly overruled the demurrer. — Klein v. Miller, 97 Ala. 506, 11 South. 830.

The decree overruling the demurrer is affirmed.

Affirmed.

Tyson,. G. J., and Simpson and Mayfield, JJ., concur.