Tompkins v. Nichols & Jamison

BRICKELL, C. J. 1. In general the obligation of proving any fact, lies upon the party who substantially asserts the affirmative of the issue. 1 GreenFf. Ev. § 74. 2. Where the allegation, whether negative or affirmative in form, involves a charge of fraud, or other like violation of the law of God and man, the party making the allegation must prove it; for in every such case the presumption of law, which is always in favor of innocence, is in favor of the party charged. 1 GreenFf. Ev. § 80. 3. “A court of chancery will not impute fraud, when the facts and circumstances out of which it must arise may consist with pure intentions; but to create such an imputation, the facts must be such that they are not explicable on any other reasonable hypothesis. Steele v. Kinkle & Lehr, 3 Ala. 358; Smith v. Br. Bank of Mobile, 21 Ala. 125; The Ala. Life Ins. and Trust Co. v. Petway, 24 Ala. 566. 4. The retention of possession of a chattel by the vendor after an absolute sale, is, as to his creditors, not a fraud per se, but no more than a badge of fraud, and open to explanation. But the retention of the possession of land by the vendor after he has conveyed the same and his conveyance has been duly recorded, does not raise even a presumption that his sale was fraudulent. Paulling v. Sturgis, 3 Stew. 95; Noble v. Coleman, 16 Ala. 77; 1 Brick. Dig. pp. 25 — 26, §§ 154 to 175. 5. The legal title to land in Alabama, in general passes and is evidenced by writing only, and by writing which our registration law requires to be recorded within a period therein designated. McPherson v. Walters, 16 Ala. 716. 6. If the possession of land appear to be in a mother-in-law or in a son-in-law who live together upon it, the possession will be referred to the legal title; and the appearance of possession by the mother-in-law is not a badge of fraud where she has conveyed the land to the son-in-law and her conveyance has been duly recorded. Terrell v. Green, 11 Ala. 207. 7. The relation of mother-in-law and son-in-law between the vendor and vendee of land, is not more than a mere circumstance, from which in connection with other facts and circumstances fraud may be inferred. That relation alone is not a badge of fraud and does not shift the burden of proof. 8. The intention of the mother-in-law, the vendor, to defraud her creditors, cannot invalidate her conveyances of land to her son-in-law in the absence of evidence proving [201] his participation in her meditated fraud. Anderson v. Hooks, 9 Ala. 704; Jones v. Norris, 2 Ala. 526; Stover v. Herrington, et al., 7 Ala. 142; Oden v. Rippetoe, 4 Ala. 68. 9. The defendants in the present case, who are the appellants here, are charged with a fraud upon the creditors of the vendor, in the sale by the one to the other of the lands mentioned in the bill. They absolutely deny all fraud and responsively set up in their answers a bona fide solo, and conveyance by tbe one to tbe other for valuable consideration; and the vendee in his answer denies all notice at tbe time of his purchase of any indebtedness by or suit against his vendor. These several answers are, by agreement of complainants’ solicitors, duly made, to be deemed also as the duly taken depositions of the defendants, and as such constitute part of the evidence in the cause. It is manifest that these denials contained in the answers, and these agreed depositions, are not outweighed by anything contained in the depositions of the only two witnesses examined by the complainants touching the alleged fraud. Upon these grounds alone, without noticing other grave questions presented by the record, the solution of which cannot possibly benefit the complainants, we are compelled to hold that the chancellor erred in his several decrees, and to reverse the same, and to render here a decree dismissing the bill at the costs of complainants in this court and in the court below.