Dubose v. Young

COLLIER, C. J.' The first question to which our attention is invited, is, whether the deed of trust under which the [144] plaintiffs claim, was shown to be supported by a sufficient consideration to entitle them to recover of the defendant, who was a purchaser at a sheriff’s sale, in virtue of an execution against the estate of the grantor ? As between the parties to the deed, or the notes it professes to secure, it is admitted that they import a consideration, but as it respects the defendant, it is insistedi that they are res inter alios, and consequently inoperative without the aid of extrinsic proo(. Let us examine this argument in reference to our own decisions. In McCain v. Wood, 4 Ala. Rep. 258, which was a controversy between a pre-existing creditor of the grantor, and the trustee in a deed to secure another creditor, it was held, that the consideration for the deed must be shown, and is not proved by the recitals in it, or by the admissions of the grant- or at the time of its execution. So in the Branch Bank at Decatur v. Kinsey, 5 Ala. Rep. 9, we said, “ a voluntary conveyance of property is void as against creditors: in a contest therefore, between a creditor and one claiming through the debtor, it is necessary for the latter to prove that the conveyance was not voluntary, by showing that a valuable consideration was given for the property. ‘This is not shown by the recital of that fact in the conveyance, as that is a mere declaration or admission of the grantor, but must be proved by extrinsic evidence.” See also Doe ex dem. McGintry & McCarty v. Reeves, 10 Ala. Rep. 137, In these cases the creditors were such when the deeds were executed, or were in a position to claim all the advantages which such a situation could give. In Griffin v. Doe ex dem. Stoddard and Murphy, 12 Ala. R. 783, a deed was executed by a member of a mercantile firm, conveying lands in trust for the payment of such debts, as the partnership might afterwards contract, and requiring the trustee to sell at the instance of any one of such creditors. Held, that the trustee could recover in ejectment against a purchaser at a sale under execution, for debts of the grantor contracted previous to the execution of the deed, upon proof that the partnership commenced business, contracted debts, and that there were unsatisfied judgments against the firm. The court remarked, that without the proof of unsatisfied1 partnership debts, “it might well be doubted [145] whether the trustees could have maintained this action — it beiug shown that the defendant was a purchaser at sheriff’s sale, under a judgment against the grantor individually.” These citations are perhaps decisive to show, that the proof in the case at bar would be defective, if it appeared that the debt upon which Taylor’s judgment was recovered, was existing at the time the deed was executed by Carter to the plaintiff. But it does not appear when the liability accrued. The county court of Marengo commenced its fall term in 1838, on the second Monday of November, and the judgment may have been then rendered by default, or confession upon a cause of action which matured just about the same time. A bill of exceptions which is so inexplicit in its statements as to require interpretation, must be taken most strongly against the party excepting, and as it does not appear that the judgment was not rendered at the appearance term, or when the liability accrued, it cannot be intended that it existed on the third of October, 1838, the day on. which the deed of the plaintiffs bears date. In this posture of the case, the rule of law which excludes the verbal or written admissions of a party to a transaction, as evidence against a stranger docs not apply. In Goodgame v. Cole & Co. 12 Ala. Rep. 77, it was held that the general rule, that the recitals in a deed made by a debtor, or admissions by him at the time of its execution were not evidence, must be confined to declarations and admissions made after the creation of the contesting creditors debt, as until then there is no reason why even a voluntary conveyance may not be good. “ What weight,” say the court, “ such admissions would be entitled to in the minds of the jury, it is evident would depend on the circumstances of the case, but in principle they seem to be admissible, if made by the debtor at a period of time when it is not his interest to make them, and when they cannot affect the creditor against whom they are afterwards used. It will thus be seen that the test of the admissibility of such admissions, is not the length of time previous to the trial; that it is the fact whether the debtor at the time had an interest in creating a title in another to defeat the particular creditor. See also, [146] Simerson v. The Branch Bank at Decatur, 12 Ala. R. 205. It is needless to add to these citations, for they very clearly establish, that the recitals in the deed, and the notes which it purports to secure were admissible evidence. The case of Griffin v. Doe ex dem. Stoddard and Murphy, tit supra, is perhaps distinguishable from the present, as to the effect of the evidence. There the deed was professedly for the benefit of creditors, and in a controversy between the trustee and one claiming under a pre-existing creditor of the grantor, it was' necessary to show that there were debts of the partnership still unpaid. In the case at bar, the deed conveys the lands and slaves to the trustee — thus investing him with the legal estate, and if default should be made in the payment of the notes intended to be provided for, hé was required to sell so much of the property conveyed as was necessary to pay the sum due and unpaid, upon the written request of the cashier. The purpose of the parties was, to secure a capital in money, or its equivalent, to enable the association to prosecute the ordinary business of banking; and at the time the deed was executed, the object contemplated was not prohibited by law. In the absence of countervailing evidence, the notes and deed are prima facie evidence of the facts they import, against a subsequent creditor of the grantor, (as we must intend Taylor to have been,) and without further proof, entitled the plaintiffs to recover. This conclusion is an obvious sequence from what is said in the cases cited from 12 Ala., and we will not attempt further illustration. The assent of a party to a security which does not postpone the day of payment of his demand, or cannot otherwise prejudice his rights, but is altogether beneficial, will, in the absence of express proof be presumed; and if there is no time prescribed within which the beneficiary must make known his assent, it is difficult to fix a limitation of general application. Such cases must depend upon circumstances peculiar to themselves. If Mr. Cooke was the agent of the company, invested with authority to receive notes and securities from its members, then his assent to the deed, as indicated by the subscription of his name, if placed there by him [147] self or his authority, would be inferred, and be regarded as the act of his principals. But without reference to Cooke’s authority, the assent of the members of the association may be intended upon the principle we have stated. Conceding that the defendant was in failing circumstances, and this was known to the other members of the company, when the notes and deed were executed, and it does not indicate mala Jides on the part of the latter. It was clearly competent for the grantor to enter into such contracts as are legal. He might stipulate with others to engage in business which required money and credit, and if there were no liens upon his property, we can conceive of no objection to his selling or conveying it as a security for the payment of his debts, or the performance of other engagements. These we regard as mere legal truisms which require neither argument or authority to sustain them. The record discovers no available error, and the judgment of the circuit court is consequently affirmed.