Woody v. Tucker, Willingham & Co.

*279 SAYRE, J. On and before April 1, 1921, defendant J. R. Woody was indebted to complainants Tucker, Willingham & Co. in sums aggregating several thousand dollars. The larger part of these debts had come over from years antedating 1922. In January, 1922, complainants commenced an action in the circuit court of Chambers county to recover the amount of J. R. Woody’s indebtedness, and on March 7, 1922, judgment was rendered for complainants in the sum of $4,033.16 and costs. On the 23d day of the same month a certificate of judgment was filed for record in the office of the probate judge of the county. February 20, 1922, two paper writings were filed for record in the office of the judge of probate, the one purporting to be an agreement between J. R. Woody and his brother E. A. Woody, of date April 1, 1921, for the sale by the former to the latter of 200 acres of land, mules, and farming implements, for $8,000, reciting the payment of $250, the balance, less mortgage and account due from J. R. to E. A., to be paid on delivery of a deed to the property; the other, purporting to be a deed of conveyance of the property from J. R. to E. A., on consideration of $8,000', as recited in the agreement. This deed was dated and acknowledged April 15, 1921. The circuit court, sitting in equity, rendered a decree on complainants’ bill, setting aside the deed as made in fraud of their rights as creditors, and respondents J. R. and E. A. Woody have .appealed. Complainants’ debt, due ait and before the time of the agreement and conveyance to which reference has been made, is not denied, nor is it denied that the deed in question left defendant J. R. Woody without means to pay his debt. Defendants were brothers. In the case thus shown, without dispute, the burden rests upon defendants of proving the bona fides of the consideration alleged for the agreement and conveyance, and, since grantor and grantee were brothers, our uniform decisions hold that the transaction will be more closely scrutinized at the instance of a creditor than would a like transaction between strangers. Merchants’ Bank v. Parrish, 214 Ala. 96, 106 So. 504; Watters-Tonge Lbr. Co. v. Knox, 206 Ala. 183, 89 So. 497; Moog v. Farley, 79 Ala. 246; Zelnicker v. Brigham, 74 Ala. 598. And the stated rule as to the burden of proof includes the requirement of clear evidence of the grantee’s ability to make the purchase, where that is questioned. Harrell v. Mitchell, 61 Ala. 270. There is no need to discuss the evidence in detail. Defendants were brothers, as we have noted. The grantee had lived in Atlanta, 6a., for 20 years or more. There is nothing going to show any previous business relations or transactions between the two. Grantee was a man of small means, and the evidence leaves room for but one inference; viz., that he had hardly been able to make more than a very modest living during his residence in Atlanta. Defendants sought to make up the sum of the alleged purchase money by evidence tending to show that grantee had lent a considerable sum to grantor, at a time in the more or less remote past, and that two other brothers, one of whom lived in the state of Texas, the other at Seattle, in the state of Washington, had at times lent money to grantor, and that these loans assumed by grantee eked out the sum of $8,000, which grantee claimed to have paid for the agreement and conveyance. But, unfortunately, the evidence in support of defendants’ case is so meager and unsatisfactory that, when taken in connection with some other well-established but not satisfactorily explained facts; viz., that there w^.s a failure to record the conveyance until complainants had brought suit on their claim (Seals v. Robinson, 75 Ala. 365), that grantor was left in possession (Seals v. Robinson, supra, and Giddy v. Shotts, 214 Ala. 627, 108 So. 573), and that the trial judge heard the witnesses, grantor, and grantee, who — the record justifies the inference— must have made a very unfavorable impression by their efforts to establish the bona fides and adequacy of the consideration claimed — these facts leave the case for defendants, appellants, in such questionable shape that, upon due consideration, we are wholly unable to affirm error of the trial judge’s conclusion that complainants were entitled to the relief prayed in-their bill. At the taking of the testimony before the judge, many exceptions were reserved on questions of evidence, and these excep *280 tions and the rulings to which they were directed take up quite a considerable part of the record transmitted to this court. This was unnecessary. Section 6565, new, to the Code of. 1923, makes it the duty of the court, in the consideration of equity causes, to “consider only such testimony as is relevant, material and competent, and shall exclude and not consider any testimony which is irrelevant, immaterial or- incompetent, whether objection shall have been made thereto or not,” and so likewise on appeal. We take it that, on hearing the testimony ore tenus, the court may expedite the cause and save the parties costs by refusing to hear- testimony patently irrelevant, immaterial, or incompetent; but, if error is committed in this respect and it appears that thereby testimony is excluded from the record which this court, on appeal, finds may have been material to a correct decision, a reversal will be ordered. Such was the judgment in Montgomery v. McNutt, 214 Ala. 692, 108 So. 752, recently decided. It would seem to follow that the answer to a question calling for anything like a fact of doubtful admissibility should be admitted to the record for future consideration by the trial court and by this court in the event of an appeal. In this connection, we may add that a memorandum may frequently be of use to the court in calling its attention to debatable-questions of evidence, and the court, by order, may make such a memorandum a part of the record. In the present case, stress is laid upon several rulings of the trial court on questions of evidence. We have no doubt that the answer, in -the first place, of the witness J. R. Woody to a question whether he said anything to his grantee about other debts he owed on the occasion when they entered into the agreement for a conveyance on the 1st and 15th days of April, 1921, should have been received, but we find at other places in the record that the facts called for by the question were placed before the court. Thus, on page 28 of the record, J. R. Woody testifies that he told his brother nothing about his indebtedness or- financial condition, and, on page 75, defendant E. A. Woody testifies to what was said between them, the substance of J. R. Woody’s statement, according to the testimony of the witness, being that with cotton he had, in connection with the proposed sale, he could take care of all his debts. In this state of the evidence, a reversal on account of the ruling here in question could hardly be justified. ' We find no sufficient reason for a reversal in that ruling of the court which refused to allow the witness B. A. Woody to answer the question whether, in the trade for the land, J. R. Woody reserved any interest. The question called for the mere conclusion of the witness. . - " Nor was there error in the court’s refusal to consider — though they were properly admitted to the record — letters written by the brothers in Texas and Washington to the grantee E. A. Woody. These letters were hearsay and for the most part immaterial. We find no sufficient reason for reversing the decree rendered in the trial' court. Affirmed. GARDNER, MILLER, and BOULDIN, JJ„ concur.