Proskauer v. People's Savings Bank

CLOPTON, J. Conceding that a general averment of fraud is insufficient, and that the facts out of which the supposed fraud arises, must be alleged, the bill is not obnoxious to this objection. It alleges facts, which, if true — and the demurrer admits them to be true — characterize both conveyances— the one to Werborn, and the one to Julia Proskauer — -as fraudulent against the creditors of Adolph Proskauer; and alleges that the grantees had knowledge of, and participated in the fraud. The ground of demurrer, that the bill is filed in two incompatible aspects, is founded on a misconception of the frame, character, and purpose of the bill. It is filed by a simple-contract creditor, and its sole purpose is to assail the alleged fraudulent character of the conveyances, and to condemn the property conveyed to the payment of complainant’s debt. The allegations as to the consideration are varied, with the view to meet any supposable state of the evidence; but, if either of the alternative allegations is true, the consideration is fraudulent. The expressed consideration of the deed to Werborn is five thousand dollars paid, and that Werborn has become surety on the bond of the grantor as administrator. The bill avers that no money whatever was paid; or, if any was paid, it was largely less than the real value of the property; and that Werborn had become such surety before the execution of the deed; that there had been no settlement of the administration, and the surety had paid nothing on account of his liability. A consideration wholly simulated, or simulated in part, if inserted for the purpose of increasing the apparent consideration to an [261] amount equal to or approximating the value of the • property, where the deed is executed with the intent to prevent the property from being subject to the debts of the grantor, as the bill alleges, is fatal to the validity of the deed.' — Tatum v. Hunter, 14 Ala. 557. The mere fact of having become surety on an antecedent bond is not a valuable consideration, sufficient to sustain an absolute conveyance against the creditors of the grantor, the surety incurring no new, additional, or contemporaneous liability; and an absolute conveyance by an embarrassed debtor, secretly intended to operate as indemnity against an antecedent liability on the administration bond, reserves a benefit or use to the grantor, and is fraudulent as to his existing creditors.— Sims v. Gaines, 64 Ala. 392; Fellows v. Lewis, 65 Ala. 343. On either of the alternative statements as to the consideration, the complainant is entitled to the same relief, and the same defense is applicable. As to the conveyance to .Julia Proskauer, the bill alleges a simulated consideration, or its payment with funds belonging to her husband, the debtor, or payment out of her own money with notice of the fraud affecting the title of her grantor. Acts or admissions en pais, in order to operate an estoppel, must have influenced the conduct of the party setting them up, or alleging them as an estoppel. It can not be seriously contended, that the delay of a creditor to pursue property alleged to have been fraudulently conveyed, for two or three years, in the meantime making efforts to secure or obtain payment of his debt otherwise, estops him from assailing the first, or a supervening fraudulent conveyance, and seeking to subject the property to the payment of his demand ; or that he is' es-topped by renewals of the debt, and accepting the grantee as m indorser, when such indorsement is not made, with the knowledge of the creditor, on the faith of such conveyance having been executed. Before Werborn became such indorser, he had disposed'of the property to Julia Proskauer, as the bill alleges, fraudulently; and no inference or intendment arises from the averments of the bill, that the complainant influenced Werborn, in any manner, to become such indorser. The object of the bill is to condemn the property to the payment of the note, in relief of his indorsement. The limitation which a fraudulent grantee of land may invoke for his protection, against a suit by the creditor of his grantor, is ten years — the period requisite to bar an action for the recovery of the land. — Lockard v. Nash, 64 Ala. 385. The statute which, in actions seeking relief on the ground of fraud, allows one year after the discovery of the facts constituting the fraud, within which'to prosecute a suit, enlarges the time for the benefit of the creditor, or party complaining of the fraud, [262] where the statute has already created a bar; and was not designed, and does not operate, to abridge the time necessary to perfect a bar in favor of the fraudulent grantee. — Code, §-3242. Affirmed, remanded for further proceedings.