Kirksey v. Snedecor

STONE, J. These three cases present, substantially, the same questions, and we will consider them together. The bills are in the form of creditors’ bills, filed by the complainant, Kirksey, in behalf of himself and all other creditors of the estate of J. J. Little, who will make themselves parties, and contribute to the expense of the suit. No other creditors have come in, and Kirksey remains sole complainant. The gravamen of the bills is, that Little, the intestate, in his lifetime, being largely indebted to complainant and others, purchased several tracts of land, described in the bills, paid for them with his own money, and had the titles made to Sarah A. Little, his wife, without valuable consideration moving from her, and with intent to delay, hinder, and defraud his creditors. Fraud that will vitiate a conveyance, and expose the property conveyed to the debts of the grantor, or of the person who pays the purchase-money, is of several classes. A conveyance of property on a consideration simply good, and not valuable, is voidable and inoperative against any debt the grantor may then owe; and this, without any reference to the innocence of the motive, or the present ability of the grantor to pay his debts from other sources.—Miller v. Thompson, 3 Por. 196; Moore v. Spence, 6 Ala. 506; Stokes v. Jones, 18 Ala. 734; 2 Brick. Dig. 21, § 100. A conveyance by gift, or on other consideration not deemed valuable in the law, is [198] not, for that cause alone, rendered invalid as to subsequent creditors; and hence, while such conveyance will be set aside as to antecedent debts, it will be upheld as to subsequent debts. We have never followed the doctrine, that a conveyance, made without intentional fraud, by one indebted at the time, can be, on that ground, set aside by a subsequent creditor; or, if set aside by a prior creditor, let in a subsequent creditor to share in the proceeds. To do so, would be to obliterate the distinction between actual, or intentional fraud, and constructive fraud.—See Corprew v. Arthur, 15 Ala. 525; Stiles v. Lightfoot, 26 Ala. 443; Spencer v. Godwin, 30 Ala. 355; Huggins v. Perrine, 30 Ala. 396; Gardner v. Booth, 31 Ala. 186; Cole v. Varner, Ib. 244: Pinkston v. McLemore, Ib. 308. But conveyances made in actual fraud — with intent to delay, hinder, or defraud creditors — may be avoided by any creditor or purchaser, subsequent as well as antecedent.—Williams v. Avery, 38 Ala. 115; Huggins v. Perrine, supra. In Crawford v. Kirksey, at December term, 1876, we drew some distinctions between sales made by a failing or insolvent debtor in payment of a bona fide debt, and such sales when made upon a new consideration, presently paid. We need not repeat what we then said, as we do not consider that question directly presented by these records.—See Hubbard v. Allen, at this term. Five deeds are brought to view in the present suits, and they are all assailed on two grounds: first, that the consideration in each case moved from J. J. Little, the intestate, and not from Sarah A. Little; and, second, that each and every one of the deeds was procured to be made to Mrs. Little, with intent to delay, hinder, and defraud the creditors of J. J. Little. The first and most important deed was made by Hibler and wife, and bears date September 2d, 1867. This deed, after being duly acknowledged and certified, was recorded in the probate office of the county, January 10th, 1868. The consideration of this sale was $6,400, and the record is silent as to when it was paid. We infer it was paid before the deed was executed. The second deed averred to have been made, it is charged, bears date February 15, 1868, and was executed by Mary Beatty. This deed is not in the record, and it is neither averred nor proved when the consideration was paid, the amount of it, or value of the lot purchased. We infer this was paid for at or before the execution of the deed. We know not whether this deed was recorded. The third was executed by Eeavis and wife— their first sale — and bears date April 9th, 1868; consideration, $470 in gold, paid down at the purchase. This deed was not received for record, until' October 4th, 1871, The [199] bills charge that, when, these deeds were executed, J. J. Little was largely indebted to complainant and others. The account and dealings between Little and Kirksey & Carpenter — now Kirksey — is made part of the testimony. It shows that the first item of indebtedness from the former to the latter was April 11th, 1868, “ cash paid Stone & Matthews, $1,000.” On the 25th of the same month, $900 of this was returned, or refunded. The next debit is May 6th, $150; set off by a collection by Kirksey & Carpenter, for Little, of the same amount, two days before. On the 23d April, 1869, the account was made out and balanced between the parties, and the balance then against Little was only $581.42, five hundred dollars of which was for an advance made that day. It is thus shown that, at the purchase of the three parcels of land above referred to, Little was not at all indebted to Kirksey & Carpenter; and so, as to these tracts, the relief claimed on the ground stated above must fail. The other two conveyances, however, stand on a different footing. The deed of Thompson, administrator of Rogers, was executed December 19th, 1870; and the second deed from Reavis and wife bears date September 28th, 1871. There are circumstances tending to show that these purchases were probably made at an earlier date than these deeds show. But no reliable evidence is given, showing when the purchases were made, or the money paid. Hence we can not, with safety, assign to these transactions dates different from those shown in the deeds. Kirksey & Carpenter were large creditors of Little when each of these transactions was had, and their debt has never been paid. In January, 1870, the balance was over $7,000. In April following, it was near $5,000; and it steadily grew from that time until Little’s death, in February, 1872. These purchases fall under the principle of conveyances made by - or through a person who is indebted at the time, and cast on the grantee the necessity of proving a valuable consideration. The $1,000 alleged to have been received from Mrs. Rogers, the distributive share of Mrs. Little in her father’s estate, is the only item we deem it necessary to consider in this connection. Of that sum, Little received $800 in draft of Mrs. Rogers, which went to complainant in this suit, March 4, 1869 ; immediately after it was drawn. When the remaining $200 was received is not shown. Little paid Thompson, administrator of Rogers, the purchase-money for the property bought of him, by obtaining a loan from Chas. Hopkins & Co., October 18th, 1870. He paid Reavis, for the purchase from him,, through Kirksey & Carpenter, in January, 1869, and in January, 1871. There is no testimony sufficiently [200] explicit to connect either of these purchases with the $1,000— Mrs. Little’s distribution-money — and this line of the defense must fail.—See Hubbard v. Allen, at the present term; and Hamilton v. Blackwell, at present term. The only remaining question we need discuss, is the charge in the bills that the several deeds were procured by Little to be made to Mrs. Little, with intent to delay, hinder, and defraud his creditors. "We have above disposed of the question of the invalidity of the deeds of Thompson, administrator of Eogers, and of the second deed by Eeavis and wife. We have examined the mass of evidence in this record, with great care. All the testimony of Kirksey, the complainant, tending to prove transactions with, and statements by Little, the intestate, we feel bound to suppress. — Code of 1876, § 3058. So, there is much other testimony offered on each side, which is either hearsay, or opinion. We will not specify the evidence falling under these classes, but, in our deliberations, we will disregard it. Questions arising out of the form of interrogatories are abandoned by the agreement accompanying the submission. “ Either party has the right to except to any part of the depositions offered, provided that such exception shall not be to such matter as would be remediable by retaking the deposition of the witness.” Such is the substance of the agreement. We will take no note of objections, based on the leading form of the interrogatories. As to the three deeds, bearing date September 2, 1867, February 15, 1868, and April 9, 1868, we think there is an entire absence of testimony that either of them was procured to be executed as they were, with intent to delay, hinder, or defraud any one, complainant or any other. The account with Little was opened by Kirksey & Carpenter after the last of those three deeds was executed, and more than a year after this the balance against Little was only $581. The main deed — that which conveyed property costing $6,400— had then been recorded in the probate office of the county for more than a year. And up to the death of Mr. Little, near three years' later, Kirksey & Carpenter still credited Little more liberally than they had done before. And when they took a mortgage from Little to secure themselves, they took it on other lands than those conveyed to Mrs. Little. A still more pregnant circumstance is found in the fact, that although, in each of the three bills, it is charged that the deeds were thus made to defraud Kirksey & Carpenter, yet they neither aver nor prove that, at the time they so gave credit to Little, they had not knowledge that said deeds had been made to Mrs. Little, The bills, as to the three tracts [201] of land first purchased, must fail, under the rules we have declared above. In case 249, the decree of the chancellor is affirmed. In case 250, the decree of the chancellor is reversed, and a decree here rendered, granting to complainant relief as to the lands purchased from Thompson, administrator of Bogers, and denying it as to lands purchased from Mary Beatty. All other questions are reserved for decision by the chancellor. In case 251, the decree of the chancellor is reversed, and a decree here rendered, granting relief to complainant, and declaring the lands therein described are subject to his claim. All other questions are reserved for decision by the chancellor.