Opinion
6 Div. 555
May 24, 1934.
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
C. J. Griffith, of Birmingham, for appellants.
A creditor's bill to set aside a conveyance as fraudulent must succinctly state facts constituting fraud, and cannot aver fraud as a mere conclusion. Crisp v. First Nat. Bank, 224 Ala. 72, 139 So. 213.
J. P. Mudd, of Birmingham, for appellee.
Brief did not reach the Reporter.
"We have frequently referred to the settled rule in Alabama, that an existing creditor may have the chancery court set aside a deed as fraudulent, when it is voluntary, without an allegation that the debtor was insolvent, or that the parties participated in an intent to defraud. It has been many times held that allegations such as are here stated are sufficient as against that claim. The authorities are cited in Birmingham Property Co. v. Jackson Securities Investment Co., 226 Ala. 612, 148 So. 316; Kuykendall v. Terry, 227 Ala. 227, 149 So. 687." Waites et al. v. First Nat. Bank of Wetumpka, 227 Ala. 684, 151 So. 847, 848.
We think the present bill of complaint shows that the complainant is an existing creditor, and that the conveyance by Rudolph Kratz to his wife was, without consideration, a gift, and this results from either alternative — the first charging a direct gift, and the second an indirect one. The bill, therefore, regardless of any averment of fraud, if proven, makes out a case for equitable relief, either by subjecting the property conveyed or the ninety-eight shares of stock issued to the wife by the new corporation to the payment of the complainant's judgment.
The trial court did not err in overruling the respondents' demurrer to the bill of complaint, and the decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.