Tatum v. Hunter

DARGrAN, J. This case is clearly distinguishable from! Anderson et al. v. Hooks et al. 9 Ala. Rep. 704. In that case, it did not appear, that any person participated in the* fraud, but the grantor. The debt recited in the deed as due* to the bank, and on which Hooks was security, was bona? fide; and neither Hooks, nor the bank, participated in the fraud. This court held, that the deed was valid, so far as* this debt was concerned, although the debt to Stocks, recited-in the deed, was simulated. But in the case at bar, both? debts named in the deed, are payable to the mortgagee; and the charge was, that if one of the debts was simulated’, and was inserted in the deed with the view to swell the amount of indebtedness, equal to the value of the property, and- was done for the purpose of covering the property, and protecting it from the other creditors of the debtor ,• and if the mortgagee participated in this object, and purpose, then the mortgage was void in toto. It must be admitted, then, where the object, and intent'of a deed, is -to defraud, hinder and delay creditors, and both' grantor and grantee participate in the fraud, the deed is void y otherwise, the statute of frauds would be of no avail. Herer both the debts named in the deed, are payable to the grantee,, and because the one that may have been bona fide, was due-lo him as guardian, cannot relieve the deed from the consequences of this fraudulent intent, in a suit at law, between' the creditor, who was intended to be defrauded, and the grantee, who participated in that fraud, and to whom the money secured, or pretended to be secured by the deed, was payable. [560] It is not necessary to examine, whether the infant ward, could claim that the debt, to which he was entitled in equity, should be first paid out of the property conveyed by the fraudulent deed, (if he could not otherwise collect it,) by filing his bill for that purpose. However that may be,, the deed, as between a creditor and the fraudulent grantee, must be declared void. There is no error in the ruling of the circuit court, and the judgment is consequently affirmed.