Lipscomb v. McClellan

STONE, J. The transcript in this cause was evidently prepared by an inexperienced hand. One error in its preparation consists in the fact, that the answer to the first amended bill precedes the answer in chief to the original bill. Other criticisms might be indulged, on the general frame of the transcript. Another fault does not appear to lie at the door of the register. What is known as the attachment suit and proceedings against Sarah Lipscomb, even including the opinion of this court pronounced on appeal, is made an exliibit to the original bill, with the single exception, that the complaint filed in that cause seems to be omitted. A complete transcript of that cause appears a second time in this record, as evidence on the trial. This swells very materially the volume and expense of the transcript for this court, and should have been avoided. There never was any occasion for making the opinion of this court a part of the record. The bill as first framed, and first amended, presents complainant’s claim in a double aspect. First, it seeks to establish, [158] and enforce against the estate and heirs of Mrs. Sarah Lipscomb, the lien created by the levy of Mi’. McClellan's attachment. Before that attachment suit was reduced to judgment, the defendant, Mrs. Lipscomb, died ; and the judgment was rendered •only against her administrator. Under this judgment, or under any execution issued upon it, there was no power to sell the lands of Mrs. Lipscomb. Such sale would be, and was, void. McClellan v. Lipscomb, 56 Ala. 255; Boykin v. Cook, 61 Ala. 472. The death of Mrs. Lipscomb, before judgment recovered, had the effect of dissolving the attachment and destroying the ben.—Phillips v. Ash, 63 Ala. 114. The other aspect of the bill is set forth in section 7 of the original bill, and section 74 of the amended bill. The original bill was filed in January, 1878, and the first amendment was allowed at the January term, 1879, and filed in February, 1879. This amendment introduces no new subject, but only makes more specific the charge brought forward in the original bill. Such amendment takes effect as of the time the original bill was filed.. — Rule 46 of Chan. Practice; 1 Brick. Dig. 704, § 953. The original bill, section 3, avers that, on the 23d November, 1867, Sarah Lipscomb, by deed reciting a consideration of two thousand dollars, conveyed the lands in controversy to Caroline Lipscomb, wife of John T. Lipscomb. That deed is made an exhibit to the bill. Section 7 of the original bill alleges, “ that the deed executed by the said Sarah Lipscomb to the said Caroline Lip'scomb, after the levy of said attachment, was and is fraudulent and void, and said pretended conveyance was made for the purpose of hindering and delaying the creditors of said Sarah generally, and [the complainant] especially, from and in the collection of their just debts'against the said Sarah.” The debt on which the attachment was sued out, and which this bill seeks to enforce, was contracted March 2d, I860, and was due at twelve months. It will he observed that, in the averments copied above, there is no denial of the consideration, upon which the deed purports to have been executed, nor is it averred that the said Caroline bad notice of the alleged fraudulent intent with which Sarah Lipscomb made the conveyance, or that she participated in such fraudulent, intent. This averment was insufficient.—Flewellen v. Crane, 58 Ala. 627. In the amended bill, section 74, this defect is remedied. Its language is: “The complainant alleges, that said deed of Sarah Lipscomb was without consideration. Said deed recites a consideration of two thousand dollars. Complainant [avers] that the vendee in said deed did not pay the said vendor said two thousand [dollars], or any other smn, but that said deed was wholly voluntary.” This cast on the defendant the necessity of proving a valuable consideration; and the transaction being be [159] tween near relations, and entered into while a suit was pending to subject the property to the payment of the grantor's debt, to uphold it, it was necessary to prove the consideration to the satisfaction of the court, and to cause it plainly to appear that it was a real contract of sale, upon a real and sufficient consideration.—Barnard v. Davis, 54 Ala. 565; Hubbard v. Allen, 59 Ala. 283; Crawford v. Kirksey, 55 Ala. 293; Hamilton v. Blackwell, 60 Ala. 545; Harrell v. Mitchell, 61 Ala. 270; Thames v. Rembert, 63 Ala. 561; Donegan v. Davis, 66 Ala. 362. The consideration for the present deed, 6et up in the original answer, was an alleged indebtedness from Sarah to Caroline Lipscomb. That defense entirely failed, both in fact and in law. At the last moment, the answer was amended, arid the consideration set up was an alleged indebtedness, of very long standing, from Sarah Lipscomb to John T. Lipscomb. Neither John T., nor any other witness, undertakes to tell how much that indebtedness was; nor is there any satisfactory testimony, explaining the transaction. He concur with the chancellor in holding, that “ neither of the defenses is sustained by the proof.” The defendants, interposed, as a defense, the statute of limitations — that is, adverse holding under claim of right, for more than ten years before this suit was brought. True, more than ten years elapsed between the making of the deed — November, 1S67 — and the commencement of this suit, in January, 1878. But, to constitute a right by adverse holding, there must be an actual possession, open and notorious. A deed, though recorded, is not actual possession. There is no proof that either Caroline Lipscomb or her husband took actual possession of the land, until after the death of Sarah Lipscomb. This was less than ten years before this suit was brought. This defense fails on the proof. It is not necessary to consider the other questions. The decree of the chancellor is so amended, as to subject the lands to sale under the debt of Sarah Lipscomb, and not under the debt of John T. Lipscomb ; and, as amended, it. is affirmed. BniCKEnn, O. J., not sitting.