Leasure v. Forquer

Per Curiam. 1. It will be seen from the complaint that the said note was executed by Forquer -June fifth, eighteen hundred and ninety-three, and it will be presumed for the purposes of the demurrer that the debt accrued upon that date and not prior thereto. The deed of which plaintiffs complain was executed long prior thereto, about January eighteenth, eighteen hundred and ninety-three, and was placed of record the same day, which gave them at least constructive notice thereof, so that at the time of the execution of the deed, plaintiffs were not creditors of Forquer. Hence it could not be true that the deed was made for the purpose of hindering, delaying, or defrauding the plaintiffs. There is no allegation of an evil design on the part of Forquer to secretly dispose of his property with a view of contract 339 ing a debt with plaintiffs for the purpose of defrauding them. So far as the allegations of fraud are concerned, they are mere conclusions, and not a statement of facts out of which it is supposed to arise. Such averments alone will not support a judgment: Flewellen v. Crane, 58 Ala. 627; Rowland v. Coleman, 45 Ga. 204; Wood v. Amory, 105 N. Y. 282 (11 N E. 636); Van Weel v. Winston, 115 U. S. 237 (6 Sup. Ct. 22). 2. The allegation, however, that the “deed of conveyance was made without any consideration whatever,” is an averment of fact, but this cannot avail the plaintiffs in the absence of some showing that Forquer had an interest in the premises, or that Bosworth was holding them in secret trust for his use and benefit. The only intimation we have from the complaint that Forquer had any interest whatever at the time of the execution of the mortgage is his covenant, and perhaps a colorable presumption of some sort of title arising from the fact of his giving it to plaintiffs; but this is not competent evidence to impeach Bosworth’s title in the absence of a showing of conspiracy to which both Forquer and Bosworth were parties. If Forquer had no creditors to sub-serve, he had a right to convey his property to whomsoever he pleased, without a consideration, and unless it was conveyed in trust for himself it would be out of reach of his subsequent creditors: Hill’s Code, § 3053. No such secret trust relations are set up, nor are they relied upon for relief. We cannot concur with counsel for the plaintiffs that the defect in the complaint is one of statement merely; it states a defective title and is insufficient to support the decree based upon it. It follows that the decree is reversed, the demurrer sustained, and the cause remanded for such other proceeding as may seem appropriate not inconsistent with this opinion. Reversed.