Fitch v. Corbett

Per Curiam. This action was instituted to set aside a conveyance alleged to have been executed to hinder, delay, and defraud creditors, and especially one E. M. Heistand, the plaintiff’s assignor, of her rights as creditor. Actual fraud is averred and found as a fact, and the finding is sustained by the evidence. It is argued that because Mrs. Heistand knew of the fraudulent conveyance that neither she nor her assignor can avoid it. We cannot see that there is any reason in this position, for if she was aware of the conveyance, and knew its fraudulent character, it was still void, and she has done nothing by which her right to proceed to annul it for fraud has been waived or given up. If she knew the character of the conveyance she knew that it was fraudulent, and by consequence void. (Carter v. Castleberry, 5 Ala. (N. S.) 279.) For did she waive any right by settling with Corbett for seven thousand five hundred dollars. How the settlement of the 3d of July, 1878, purged the fraud we cannot conceive. The counsel for appellants is mistaken in viewing this case as a mere' voluntary conveyance to the wife without actual fraud, and as only constructively fraudulent against' existing [152] creditors. It is, as we have said above, a case of actual fraud alleged, established, and found. We have examined the errors of law assigned and find none of them maintainable. . Judgment and order affirmed. Hearing in Bank denied.