Opinion
7 Div. 364.
February 13, 1936.
Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.
Haralson Son and J. A. Downer, all of Fort Payne, for appellant.
No knowledge of fraudulent intent on the part of the grantor is imputed to J. C. Downer in the bill. The bill is without equity so far as he is concerned. The allegations in the bill are not sufficient to charge fraud in the transaction. Facts constituting fraud should be specifically alleged; mere conclusions are insufficient. Simmons v. Shelton, 112 Ala. 284, 21 So. 309, 57 Am.St.Rep. 39; Little v. Sterne, 125 Ala. 609, 27 So. 972; Cannon v. Birmingham T. S. Co., 194 Ala. 469, 69 So. 934; 9 C.J. 1233, 1254. Relationship between grantor and grantee is not of itself a badge of fraud. 27 C.J. 495; Teague v. Lindsey, 106 Ala. 266, 17 So. 538; Ft. Payne Fur. Co. v. Ft. Payne C. I. Co., 96 Ala. 472, 11 So. 439, 38 Am.St.Rep. 109. The bill is defective in that it does not allege the indebtedness claimed to complainant was due at the time the bill was filed. Gibson v. Trowbridge Furn. Co., 93 Ala. 579, 9 So. 370, affirmed 96 Ala. 357, 11 So. 365. Where a valuable consideration has been paid, the sale will not be set aside unless it is averred and shown that the purchaser knew of and participated in the fraudulent intent of the seller. As to this, the burden is on the attacking creditor. Pippin v. Tapia, 148 Ala. 353, 42 So. 545.
Scott Dawson, of Fort Payne, for appellee.
The burden of proof was on defendants to show the bona fides of the transaction. 27 C.J. 494. Teague v. Bass, 131 Ala. 422, 31 So. 4; Woody v. Tucker, W. Co., 215 Ala. 278, 110 So. 465; Wade v. Brantley C. Const. Co., 230 Ala. 345, 161 So. 101; Montgomery v. Hammond, 228 Ala. 449, 153 So. 654; Landham v. Commercial Nat. Bank, 227 Ala. 18, 148 So. 434; Kuykendall v. Terry, 227 Ala. 227, 149 So. 687. The demurrer to the bill was joint, not separate. The bill alleges a voluntary conveyance from G. L. Downer and wife to J. C. Downer, and prays that the amount of complainant's indebtedness be ascertained. It also avers that at the time the conveyance was executed appellant G. L. Downer was indebted to complainant. The assignment of errors is joint and by all the defendants, two of whom do not join in the appeal. If error was committed in the decree on demurrer or in the final decree, J. C. Downer could not complain, because he does not appeal. Boutwell v. Spurlin Mercantile Co., 203 Ala. 482, 83 So. 481; Griffin v. Griffin, 206 Ala. 489, 90 So. 907; Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; Thomasson v. Benson Hardware Co., 224 Ala. 11, 138 So. 287; Beachman v. Aurora Silver Plate Mfg. Co., 110 Ala. 555, 18 So. 314.
Bill by the appellee bank to set aside a conveyance from G. L. Downer to his wife as fraudulent and void as against the creditors of said G. L. Downer. Also to set aside as voluntary a conveyance from said G. L. Downer to his brother, J. C. Downer. There was a decree denying the relief as to the wife, but granting relief and setting aside as voluntary the deed to the brother, J. C. Downer.
G. L. Downer only takes this appeal; therefore, whether the bill was or was not defective in charging fraud as to the conveyance to the wife matters not, as the deed was upheld, and the only rulings now to be considered are those which injuriously affect G. L. Downer, the sole appellant.
We do not think that the bill of complaint is wanting in equity and think that it is sufficient in the charge of a voluntary conveyance of the deed from the appellant to his brother, J. C. Downer.
While the bill avers that the appellee bank was a creditor when the conveyances were made, the appellant insists that it did not charge that the debt existed when the bill was filed, and it was therefore subject to grounds 3 and 4 of the demurrer. Good pleading probably required an averment that the debt still existed when the bill was filed, especially when the defect was pointed out by demurrer, but any error in overruling these grounds of demurrer was without injury, as the existence of a debt both at the time the conveyance was made and when the bill was filed was inquired into by the evidence, and the great weight of same established the debt and its existence when the bill was filed. Birmingham Water Works Co. v. Barksdale, 227 Ala. 354, 150 So. 139, and cases cited.
It is also argued that the bill fails to describe the nature and character of the indebtedness, citing the case of Gibson v. Trowbridge Furniture Co., 96 Ala. 357, 359, 11 So. 365. It is sufficient to say there is no ground of demurrer making this point.
The complainant being an existing creditor and charging that the conveyance to the brother, J. C. Downer, was without consideration and voluntary, the burden was upon the grantee to establish a valuable consideration. A careful consideration of the evidence convinces us that the consideration recited in the deed from the appellant to his brother, J. C. Downer, was purely fictitious, and the decree of the trial court so holding is correct.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.