Noble v. Gilliam

HARALSON, J. 1. The burden was on the defendants, not simply to deny the negative averment, that there was no consideration, — as averred in the bill, — but to state the affirmative fact that there was such consideration, in what it consisted, when and how i.t was paid, The controversy being between creditors and the wife, there is a presumption against her, which she must overcome by proof, and she cannot avail herself of any matter of defense which is not stated in her answer, even though it should appear in evidence. — Robinson v. Moseley, 93 Ala. 70; Gamble v. Aultman, 125 Ala. 373; Wimberly v. Montgomery F. Co., 132 Ala. 107; 31 So. Rep. 526. 2. Here, the denials of the answer of the averments of the bill as to want of consideration and the fraud alleged were general. The answer merely states, that defendants deny that the sale was for the purpose of hindering, delaying and defrauding the creditors of R. D. Noble, the husband, or that the said R. E. Noble, the wife, is a voluntary grantee without consideration, and avers that said sale was bona fide for full value, and that complainant has no equitable claim on the property sold for the satisfaction of her debt. Such averments fall far short of such as should be made in a case of this character, to entitle defendants to introduce proof touching the consideration of the alleged sale and conveyance. Furthermore, the proof that Avas offered, if admissible, not only fails to shoAV a consideration for the conveyance of the property to her, hoAV or from what sources the Avife derived it, but- the proof satisfactorily establishes that she did not pay anything for it, but that the conveyance was made, to shield her husband’s property from his creditors, particularly from the claim of Mayfield & Jones against him, and that ho ' ‘ [624] own, after as before the pretended sale. One of the considerations of the conveyance as expressed in the instrument itself was /‘that R. D. Noble is to manage the said property for the said R. E. Noble and that he has. become her agent to transact any business for her that may come to hand, by the consent of said R. E. Noble”. The defendant, R. D. Noble, testified: “I worked close last year. When I worked close I made $150 a year. I have been adding to what I sold, and they are together worth $250. Í know them apart rthe property purchased and that sold]. From the time I made the deed to my wife, what I made with the tools has been mine, the remainder of that year and every year since.* ** I completed and gathered the crop the year I made the deed. I don’t know how much of that money I have now. I haven’t paid any attention to it lately. I think I have $1.50. I have paid out $185 for blacksmith tools and iron. I used all the property since the sale, just as I did before, except that I swapped the horses by her consent.” The evidence of other witnesses was to the effect, that he used the property as bis own. One A. L. Gilliam testified, that he heard R. I). Noble say, that he made the deed to his wife to keep from paying a debt to Mayfield & Jones; and B. L. Gilliam testified, that he heard him and his wife both say the same thing. 3. These defendants sought to introduce evidence that complainant owed them by account, which they offered to set-off against complainant’s debt. This evidence was properly rejected, since such a claim could not be brought forward except by cross-bill. — Tatum v. Yahn, 130 Ala. 575. 4. They objected also to the introduction in evidence, of complainant’s note, on R. D. Noble, on the ground that defendant, R. D. Noble, had not executed it, and because of an alleged material alteration of the same. The answer was not verified, and there was no plea, denying the execution of this note, nor that the same had been materially altered since its execution, without which [625] evidence to sustain these defenses was inadmissible.— Dreyspring v. Loeb, 119 Ala. 282; Henderson v. Brown, 125 Ala. 567; Smith v. Hiles-Carver Co., 107 Ala. 272; Paige v. Broadfoot, 100 Ala. 610. The cases of McGhee v. I. & T. N. Bank, 93 Ala. 196, and Clements v. Motley, 120 Ala. 580, in conflict with these cases on this point, are overruled. 5. The chancellor held that it did not appear that the register’s findings were erroneous, and confirmed the same. On appeal, we will indulge all reasonable presumptions in favor of the register’s rulings, and will not . disturb them, since it is not clearly shown they were wrong. — Winter v. Banks, 70 Ala. 409; Gresham v. Ware, 79 Ala. 192; Vaughan v. Smith, 69 Ala. 92; McQueen v. Whetstone, 30 So. Rep. 548. No error appearing, the decree must be affirmed.