New v. Young

McCLELLAN, C. J. The commission to take depositions for the complainant in this case was addressed to J. Blocker Thornton and Win. B. Inge, Jr., but it in terms authorized them severally to take and certify the depositions. Under such a commission it is competent for either one of the commissioners to act without the other, a proposition fully recognized in Montgomery Street Ry. Co. v. Mason, 133 Ala. 508. Moreover, had the commission been addressed to the commissioners jointly only, the respondents could claim no advantage from the fact that only one commissioner acted since they appeared before him and cross-examined the witnesses Avithout objecting on account of the absence of the other commissioner. On the evidence in this record we have reached the follOAving conclusions: First; That on June 16, 1900, Martha New was indebted to the complainant, William Young in the sum of three hundred dollars with some interest. Second; That she had not then executed to him a mortgage to secure this indebtedness or any part of if, nor was she then under any valid contract or even verbal promise to convey the land here involved to him at any ■future time in the even she was unable to pay the debt in consideration of the debt and the further consideration of one hundred dollars to be paid by him. Third; That she had abandoned the land in question as a. homestead and that her conveyance of it on that day indirectly to her husband was fraudulent and void as to creditors, [425] and as against said indebtedness to complainant. Fourth; Tliat, while of necessary consequence complainant had the right to subject the land to payment of his debt just as if no conveyance had been made, to the husband. George New, the land subject to that right belonged to George New and she was without right or power to convey it to Young either solely in payment of the debt, or in consideration of that debt, and the money paid her at the time of the conveyance to Young or partly paid then and partly to be paid afterwards, and that, therefore, iu r conveyance to Young of date June 12th, 1901, was of no efficacy. It follows that, in our opinion, the chancellor erred in the decree rendered. The relief to which the facts entitled the complainant is a sale of the land and the application of the proceeds to the payment of his debt of three hundred dollars and interest, and this relief might, of course, have been granted under the general prayer. To refer to some of the considerations which have brought us to the final result just announced: The bill alleges that Martha Baker — now New — borrowed three several sums of one hundred dollars each from Young prior to May 12th, 1898, and that on that day he loaned her a fourth sum of one hundred dollars for which he took her additional promissory note and also a mortgage on the land. We fail to attain a state of reasonable satisfaction of mind that this last hundred dollar — promissory note — mortgage transaction occurred in the year named or for more than three years afterwards. To the contrary we are impressed that the payment of this hundred dollars, the taking of said note and the mortgage occuried at the same time that Mrs. New executed the deed to Young, viz., June 12th, 1901, and that all these matters were parts of one and the same transaction, the obvious purpose being to then create a predicate for the deed then made which would antedate Martha New’s deed to her husband of June 16, 1901. The hundred dollars then paid to Martha New was not a loan to her, but was the consideration for the deed she then executed, and in respect of that sum Young did not become and is not a creditor of Mrs. New: for if he got what he contracted for, the deed from her. He took this deed with [426] knowledge that as to every body but creditors and as against all claims of third persons aside from their debts, the title to the land was then in George New. He has no right against Martha New' to recover that payment, his only right, if any, growing out of that transaction being that which Martha New may have had against George New' to- divest, title out of him, and we are unable to see how she could have had such right. As to the three hundred dollars perviously loaned by him to Martha Baker, now New, — for we are reasonably satisfied that such loans were made — lie, of course, has the standing and rights of a creditor existing at the time of Martha New’s conveyance to George. We have no difficulty in finding that the conveyance was made and accepted with the intent to hinder, delay and defraud Martha New’s creditors, and that it ivas void as to the complainant unless the land constituted her homestead at the time it was made. On that question the case of abandonment is hardly as strong perhaps as that of Porter v. Harrison, 124 Ala. 296, yet it is sufficiently strong to support the chancellor’s conclusion that the homestead had been abandoned, and to lead us to the like conclusion. The evidence shows that she moved away from the place and took up her abode elsewhere. The cause of this removal appears to have been some trouble with her children by a former marriage involving the peaceful occupation of the place by her and her husband. There is nothing to indicate that she had any’intention, of reoccupying the land as- her homestead.- In point of fact she never reoccupied it as her homestead, but when she did return to it the place as to her and the whole world except her creditors belonged to- George New, and it was his homestead and not hers that she returned to and reoccupied. If she had any purpose to preserve the property as her homestead, upon leaving it, or before, she should have filed her declaration of homestead as required by the statute. — Porter v. Harrison, supra. The other questions presented on this appeal are not of importance in the view we take of the case. [427] Reversed and remanded. Tyson, Simpson and Anderson, JJ., concurring.