Hopkins v. Scott

LIGON, J.- 1. The deed which forms a part of the bill of exceptions does not on its face show that it was intended to hinder, delay or defraud the creditors of the grantor. It purports to be made upon a fall and ample consideration, and with the intention to save harmless certain persons who had become the securities of the grantor on a guardian’s bond, and it further shows upon its face, that the grantor was in arrears to his ward in a sum exceeding the value of the prop [184] erty conveyed. The right of a debtor, fairly, and in good faith, to prefer one creditor over another, or over all others, when he finds himself in failing circumstances, is too well settled by this, and other courts, to be doubted at this day. Grimshaw v. Walker, 12 Ala. Rep. 101; 7 Ala. Rep. 143; 4 Ala. Rep. 374; 9 Por. 566. 2. It is also well settled, that the retention of possession by a grantor in a deed of trust, if such possession is consistent with the terms of deed, is not a badge of fraud; nor is it a circumstance from which an inference of fraud would necessarily arise. McGee v. Carpenter, 4 Ala. Rep. 469; Ravisies v. Alston, 5 Ala. Rep. 297; 8 Ala. Rep. 694; 7 Ala. Rep. 235; 6 Ala. Rep. 356. From the bill of exceptions in this case, it appears that the only proof relied upon by the plaintiff in error, in the court below, was, that McMa-han, the grantor, was permitted by the trustee to retain the possession of the trust property after the deed was made, until it was taken from him by the plaintiff in error. The deed stipulates that the trustee “is authorized to permit Robert G-. McMahan (the grantor) to retain possession of the property convejmd, until a sale becomes necessary, or is most conducive to effect the object of the trust.” The possession of McMahan was strictly consistent with one of the terms of trust. It is therefore no badge of fraud, nor is it a circumstance from which fraud must necessarily be inferred. The case, then, stands as though no direct proof of fraud in fact had been introduced on the trial below, and under these circumstances we do not think the court erred, in charging the jury as it did on this branch of the case. It is said by this court, in the case of Sheffield & Co. v. Parmlee, 8 Ala. Rep. 889, that “it is our uniform course to construe the charge of the court in connection with the evidence before it, and the questions raised;” and it has been again and again held here, that where there is no conflict of evidence, it is not error for the court to charge generally, that one party or the other is entitled to a verdict. 15 Ala. Rep. 276; 13 Ala. Rep. 713; cum multis at Here the question was, does McMahan’s possession, under the circumstances of the case, furnish evidence of fraud in making the deed? is it a badge of fraud? We have seen that it is not allowed bylaw to have that effect; so [185] the case stands as though no proof of fraud had been introduced, and there is no conflict of evidence. It could not, then, be error to charge the jury that, if they believed the evidence, they should find for the plaintiff; and in effect, the charge here given is the same. Had a more specific charge been desired by the defendant, he should have asked for it. 3. To the last charge of the court below, we do not see that any just exceptions can be taken. The deed and the proof both show that McMahan’s possession was merely permissive, and was liable to be terminated at the pleasure of the trustee. McMahan could not legally retain it one moment beyond the will of the trustee, and it was not error for the court to say to the jury that he had no such estate in the property, as was subject to levy and sale under execution on a judgment at law. See Hawkins v. May, 12 Ala. Rep. 673. It is a conclusion of law, which the court had a right to draw, and in this case it wás a proper conclusion. There is no error in the record, and the judgment is consequently affirmed.