Buford, McLester & Co. v. Shannon

MoCLELLAN, J. 1. This is an action of ejectment, prosecuted by Buford, McLester & Co., against John A. Allred and others. Plaintiffs claim under a deed executed to them by the marshal of the United States District Court for the Southern Division of the Northern District of Alabama, by whom the land was sold under a judgment and condemnation in attachment prosecuted by said plaintiffs against M. L. Shannon, for the collection of a debt existing prior to February 6, 1886. - The attachment was levied on the land February 11, 1886. The marshal’s deed bears date as of December 1, 1887. Defendants claim under a deed executed February 6, 1886, prior to the levy of the attachment, by Shannon, the debtor and defendant in attachment, to John A. Allred, on a recited consideration of seven hundred dollars “in hand paid.” This deed was not recorded until February 25, 1886, subsequent to the levy. Shannon’s insolvency at the date of his deed to Allred may be taken as having been conceded on the trial below. For all the purposes of this appeal, it may be further conceded that Allred had knowledge or notice of his grantor’s insolvency. From the foregoing facts and concessions it follows, that the burden was on Allred to show a conveyance by Shannon to him in satisfaction of an antecedent liona fide debt, substantially equal in amount to the value of the land conveyed. In discharge of this burden defendants offered the deed which we have described. Its introduction in evidence was objected to in limine, on the ground that “it was fraudulent and void on its face as against plaintiffs, creditors of Shannon, in this : because said deed was executed on the 6th day of February, 1886, and was not filed for record until the 25th day of February, [211] 1886, and plaintiffs’ lien on said property was acquired by the levy of the writs of attachments thereon on the 11th day of February, 1886.” The court very properly overruled this objection. The delay in putting the deed to record shown in this case did not avoid it, as against an intervening attachment levy; and, moreover, it is not controverted but that plaintiffs had actual notice of Allred’s claim of title to the land before the levy was made. 2. The assignment of error based on the refusal of the court to exclude testimony going to show that the consideration of the deed was an indebtedness from the grantor to the grantee, is untenable. This class of cases does not involve an exception to the rule that, where a particular valuable consideration, as money presently paid, is recited, another and valuable consideration, as- the satisfaction of a pre-existing indebtedness, may be shown in support of the deed. — Wait’s Fraud. Con. § 221; Mobile Savings Bank v. McDonnell, 89 Ala. 434. 3. It may be that certain declarations of Shannon, as to what he was paying Allred for his services, deposed to by the witness Greene, were not competent to prove the debt relied on by Allred as a consideration for the conveyance to him; but this witness also testified as to the compensation agreed on between Shannon and Allred as the latter’s wages. We know of no more direct or approved method of establishing the fact in question than this. The motion of plaintiff in this connection was to exclude, not only Shannon’s declarations, but his agreement with Allred. There was no error in overruling it. Kellar v. Taylor, 90 Ala. 289; Badders v. Davis, 88 Ala. 367; Lowe v. State, Ib. 8. 4. The evidence tended to show that the whole amount of Shannon’s indebtedness to Allred was $1,400. On the day on which Allred purchased the land involved here from Shannon, in satisfaction in part of this indebtedness, he also purchased from him a stock of goods valued at $20 or $25 more than the balance of his claim, and paid therefor either $20 or $25 in money, and the balance by satisfying that part of his debt not liquidated in the land transaction. In view of Shannon’s insolvency and Allred’s knowledge of it, this latter transaction, involving as it did a present cash consideration in part, would have invalidated the sale and conveyance of the land, could the transactions be considered as one, or had there been any connection between the two. But that there was no such connection is put beyond a doubt, for all our purposes, by the follow [212] ing recital in tbe bill of exceptions : “Tbe evidence further tended to show, and upon this point there was no controversy, that the deed for the property in suit was executed and delivered before any negotiations were had with reference to the gosds ; that afterwards, and perhaps on the same day, Shannon sold Allred groceries, &c:, to pay balance due; that after the goods were selected and invoiced, they amounted to some $20 or $25 more than the balance, and All-red paid that difference in money.” In view of this recital, it is not conceivable how the purchase of the goods can any way affect the prior and wholly disconnected transaction with respect to the land. Yet the objection to the charge given for the defendants, and the exceptions to the refusal by the court of charges 2,- 7, 8 and 9, proceed on the theory, that the first transaction, though in and of itself hona fide and valid, was infected with fraud and avoided by what subsequently and wholly independently took place between the parties in reference to the stock of groceries ; while charges 10 and 12 asked by plaintiffs, and refused by the court, manifestly tended to mislead the jury to the same conclusion. The assignments of error addressed to the court’s action on these several charges are without merit. 5. While the burden of proving the prior existence and present satisfaction of indebtedness from Shannon to Allred, in amount equal to the value of the land, as a consideration for the deed, by clear and convincing evidence, was on the defendants, as declared in many of the charges refused to the plaintiffs, it is quite an error to suppose, as these charges further declare, that it was essential to prove each separate item aggregating the requisite sum. Cases may well be imagined — and indeed this is one of them — where proof of a gross sum found to be due, acknowledged and agreed to be paid, on a settlement between the parties, might well be entirely satisfactory to a jury, though the witnesses deposing thereto had no knowledge whatever of the dealings between the parties, or the items of debit and credit involved therein, which necessitated and led up to such settlement. Such instructions are especially pernicious in eases like this, where it appears the creditor and debtor, the only persons who ordinarily would be conversant with the itemization of the account, die before the trial is had. Charges 1, 3, 6,11, 13, 14, 15 and 16, asked by plaintiffs, either expressly require proof of the items of the alleged indebtedness, or proceed on the theory that such proof is essential; and this though the- jury might reasonably be entirely satisfied of the amount and bona fides of the claim from other competent [213] evidence. And charges 4 and 5 were well calculated to mislead the jury to tbe conclusion that they could not find an indebtedness beyond certain specific sums, which one witness testified that Allred loaned to Shannon, because the alleged debt in excess of this amount was not proved item by item, though there was abundant proof, even by plaintiffs’ own witnesses, that these loans did not constitute the whole indebtedness, and other evidence tending to show that, on settlements made between the parties, the balance in Allred’s favor was largely more than the sum of these loans. Many, if not all of these charges, were faulty in other particulars, but it is unnecessary to further discuss them. Each of them was properly refused. We find no error in the record, and the judgment of the Circuit Court is affirmed.