Wood & Son v. Riley , 121 Ala. 100 ( 1898 )

TYSON, J.

— -Appellees wbo were judgment creditors of William Wood & Sou filed their bill against them and the other appellants seeking to have declared fraudulent certain conveyances held by some of the respondents to certain described property. It was.averred in the bill that the said Wood & Son and the individual members composing it, were insolvent at the date of the filing of the bill, and had been for a long time prior thereto, and were insolvent when the various conveyances attacked were made. It was also shown by the bill that the. indebtedness to the complainants existed at the date of the execution of the several conveyances; and that all the respondents were either members of the family of William Wood or near relatives except the respondent Roddam. The bill further shows that suits were commenced by the complainants against William Wood and his son upon their respective claims during the month of January, 1894, and obtained their judgments in the month of February, 1895, and during the pendency of these suits the conveyances to each of the respondents were executed except those held by Hanna Wood, wife of William Wood. All of the conveyances except those held by Hannah Wood, were made by William Wood directly to the respondents holding them. As to these the bill alleges there was no consideration paid by the respective respondents for the property conveyed, notwithstanding the recital therein of the payment of a certain sum of money. As to the two conveyances under which Hannah Wood claims title to certain property, from one Adeline Burton-and husband, the bill alleges that her husband, William Wood, furnished the consideration which was paid to Mrs. Burton for the property and had the deeds made to his wife. Each of the respondents filed separate answers in which they denied there was any fraud, and all of them alleged in their answers, except Hannah Wood, that William Wood executed to each of them the conveyances to pay an antecedent debt which be owed to tbe amount of tbe consideration recited in tbe conveyance. Hannab Wood in ber answer alleges that as to tbe conveyance made to ber of date December 16,1892, by ber son wbo bad obtained tbe title from Mrs. Adeline Burton on tbe 4tb day of November, 1892, sbe gave tbe money, to-wit, $150 to ber son to make tbe purchase for ber and by mistake tbe deed was made by Mrs. Burton to bim and in order to correct tbis mistake ber son executed tbe conveyance to her. Sbe nowhere avers where sbe got tbe money that' sbe sent by ber son to Mrs. Burton.

As to tbe other conveyance from Mrs. Burton under which sbe held certain property, ber answer alleges- that ber husband made tbe contract of purchase as ber agent and that ber money paid for tbe property, to-wit: tbe $350, the recited consideration of tbe deed. As to all of the conveyances under tbe allegations of tbe bill and tbe averments of tbe answers of each of tbe respondents, except perhaps tbe first conveyance to the respondent Hannab Wood, there can be no sort of doubt, that tbe burden of proof was upon tbe respondents to establish a valuable and adequate consideration.—Calhoun v. Hannon, 87 Ala. 277; Schall v. Weil & Sons, 103 Ala. 411; Caldwell v. Pollock, 91 Ala. 353; Moore, Marsh & Co. v. Penn & Co., 95 Ala. 200; Buford, McLester & Co. v. Shannon, 95 Ala. 205. And when tbe wife or other relative is the grantee in tbe conveyance stricter and clearer proof is required.—Robinson v. Moseley, 93 Ala. 70; First National Bank v. Smith, 93 Ala. 97; Sides v. Scharff Bros., 93 Ala. 106; Lammons v. Allen, 88 Ala. 417; Wedgworth v. Wedgworth, 84 Ala. 274. And where tbe conveyance is executed to tbe wife by a third person, at tbe instance of tbe .husband, tbe onus, is upon ber to clearly and fully prove that she paid for tbe property with her separate funds.—Bangs, Bond & Co. v. Edwards, 88 Ala. 382. When tbe conveyances by tbe insolvent debtor are made to pay an antecedent debt claimed by the grantee against bim, tbis fact, raises a presumption.of unfairness and mala fides and casts upon tbe debtor, as between bim and creditors wbo attack the conveyance for fraud, tbe onus of showing that the sale was fair and made in good faith.—Calhoun v. Hannon et al. supra.

Did the respondents sustain this burden of proof? In Robinson v. Moseley, supra, it is said: .“To lift such burden, affirmative averment of the facts relied on as constituting the consideration is essential as-convincing proof of their existence. The laboring oar was upon the defendant, not simply to deny the negative averment, that there was no consideration, but to state the affirmative fact, that there was such consideration, in what it consisted and how it was paid; and to support these averments by evidence. Otherwise the answer does not apprise the complainant of the line of defense which will be resorted to, nor afford him that opportunity for preparation to meet it which is a leading purpose of all pleading, and which the complainant is always entitled to with respect to a matter of defense affirmative in character, and relied on to defeat and overturn a prima facie case made by the bill and admissions of the answer. It is said by Mr. Daniel to be ‘of great importance to the pleader, in preparing an answer, to bear in mind that, besides answering the plaintiff’s case as made by the bill, he should state to the court upon the answer all the circumstances of which the defendant intends to avail himself by way of defense; for a defendant ought to apprise the plaintiff by his answer of the nature of the case he intends to set up and that too in a clear, ambiguous manner; and, in strictness, he cannot avail himself of any matter of defense, which is not stated in his answer, even though it should appear in evidence.’ The answer must put in issue all the facts on which the defendant relies in bar of the relief sought by the bill and evidence cannot be adduced of facts outside of these issues.”

Confining ourselves for the present to a consideration of all the conveyances except the first one acquired by Hannah Wood, and the evidence offered by each of-the respondents to prove the bona fides of the transaction, without entering into a detailed discussion, of the variance between the evidence offered and the averments of the answers, a casual examination will show that the allegata and probata do not correspond.- Indeed upon a fair consideration of the evidence there is not only a failure to establish the facts as alleged in the answers, and an utter failure to overcome the presumption of unfairness and mala fides of -the transaction, bnt tbe conclusion can scarcely be resisted that- the conveyances from William Wood to each of the respondents were without consideration and were made by him for the sole purpose of defeating the complainants in the collection of their debts, and accepted by them in furtherance of this purpose.

As to the conveyances under which Hannah Wood claimed, her evidence shows that the money which was paid by her son for her was gotten from William Wood, her husband, and that the f350 which she alleges in her answer was paid by her husband as her agent, was not paid to Mrs. Burton at all, but that her husband paid Mrs. Burton for the property conveyed by the deed to her in labor and building materials for her and she allowed him a. credit of $350 on a debt he owed her. She testified, that her husband prior to December,. 1893, was indebted to her in the sum of $400 with nine years interest and $600 with eight years’ interest. Her husband testified that prior to December, 1893, he was indebted to her for $400 borrowed from her in 1875 and $600 borrowed in 1885. She further testified that when she arrived in America from England, in 1866, she had about $500, which she had acquired from earnings by keeping boarders and doing other work "while they lived in England and from the sale of some furniture when they left there. That soon after her arrival she purchased a lot in Cleveland, Ohio, and erected a house on it, which she sold in 1875 for $1,800, and came to Walker county, where $500 of this sum was invested in a farm and the loans were made to her husband out of the balance. No note or other obligation was shown by her to have been taken from her husband for either of the sums she says she loaned him. It,/is -not shown by a clear statement that her husband evlr' recognized his liability to her for either of those sums or that she ever had any expectation of having it refunded to her until he became financially embarrassed.by reason of the mercantile business which .was conducted by his partner, who was his son. He was a carpenter and contractor by trade, and the mercantile business was only in existence a short time before the firm was in financial; distress and its life was of short duration. He does say in a vague and indefinite way that he made her some small payments at different times, but could not state what amount or amounts he had paid or name any dates upon which the payments were - made. ■ We have then as against- exi1sting creditors of the husband, -a husband paying for his wife $450 to a third person for property which was conveyed directly to her, under an alleged indebtedness by him to her, a portion of which indebtedness was of eighteen years’ standing and the remainder eight years past due. Independent of the question as to whether the $500 or the $1,800 originally belonged to the husband, as unquestionably it did at common law, unless he renounced his marital claim and assented to her retaining it as her separate property, we do not think after the lapse of so great a length of time and no attempt made by the wife to collect the money or even require a recognition by her alleged debtor of his liability, without which, prima facie it had -long- been barred by the statute of limitations, and other inferences unfavorable to the bona fieles of the transaction deducible from the evidence, that it clearly appears -that she had a bona fide and enforceable, not simulated, debt against her husband.—Gordon v. McIlwain, 82 Ala. 247;. Bray and Landrum v. Ely, 105 Ala. 553; Pollak v. Meyer, 96 Ala. 172.

We find no error in the record. The-decree of the-chancellor, is affirmed.

Affirmed. . . ,