Opinion
8 Div. 496.
June 15, 1933. Rehearing Denied September 28, 1933.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
W. C. Rayburn, of Guntersville, for appellants.
Fraud in a conveyance is never presumed, and the burden is upon one challenging the conveyance as fraudulent. Cooke v. Wilbanks, 223 Ala. 312, 135 So. 435, 83 A.L.R. 1441; Allen v. Overton, 208 Ala. 504, 94 So. 477; Morris Co. v. Barton Allen, 180 Ala. 98, 60 So. 172; Dudley v. Stanberry, 5 Ala. App. 491, 59 So. 379; Bruce v. Citizens' Nat. Bank, 185 Ala. 221, 64 So. 82. When a transaction is fairly susceptible of two constructions, the one that will free it from the imputation of fraud will be adopted. Henderson v. Gilliland, 187 Ala. 268, 65 So. 793.
Griffin Ford, of Huntsville, and J. A. Lusk, of Guntersville, for appellees.
In an action to set aside a conveyance as fraudulent, evidence that complainant's debt was contracted before the execution of the conveyance shifts the burden of proof to the grantee to show that the consideration was bona fide and adequate. 14 So. Dig. pp. 28, 29, §§ 57, 58; p. 109, § 271; p. 111, § 276; p. 112, § 277; Bailey v. Levy, 115 Ala. 565, 22 So. 449; Ledbetter v. Davenport Bros., 154 Ala. 336, 45 So. 467, 129 Am. St. Rep. 62; Martin Pulsifer v. J. H. McDaniel Son, 170 Ala. 270, 53 So. 790; Allen v. Caldwell, Ward Co., 149 Ala. 293, 42 So. 855; London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 So. 359; Pollak v. Searcy, 84 Ala. 259, 4 So. 137; Lehman, Durr Co. v. Greenhut, 88 Ala. 478, 7 So. 299; Page v. Francis, 97 Ala. 379, 11 So. 736; Yeend v. Weeks, 104 Ala. 331, 16 So. 165, 53 Am. St. Rep. 50; McTeers v. Perkins, 106 Ala. 411, 17 So. 547; Wooten v. Steele, 109 Ala. 563, 19 So. 972, 55 Am. St. Rep. 947; Miller v. Rowan, 108 Ala. 98, 19 So. 9; Martin v. Beery, 116 Ala. 233, 22 So. 493; Freeman v. Stewart, 119 Ala. 158, 24 So. 31; Wood v. Riley, 121 Ala. 100, 25 So. 723; Penney v. McCulloch, 134 Ala. 580, 33 So. 665; Brunson v. Rosenheim Son, 149 Ala. 112, 43 So. 31; Murphy v. Pipkin, 191 Ala. 111, 67 So. 675.
Complainants seek the enforcement of their judgment lien against defendant Kuykendall, and in aid thereof the setting aside of conveyances by said Kuykendall to his several codefendants of separate tracts of real estate.
The bill discloses that at the time of the execution of these several conveyances complainants were existing creditors of Kuykendall, and charges that these several transactions were voluntary and without consideration. Complainants established by their proof the existence of their debt at the time, and antedating these conveyances, and it is the well-settled rule that under these circumstances the burden shifted to the grantees in said conveyances to show they paid a valuable consideration for the property, and that it was adequate, Ledbetter v. Davenport Bros., 154 Ala. 336, 45 So. 467, 129 Am. St. Rep. 62; Bailey v. Levy, 115 Ala. 565, 22 So. 449; Yeend v. Weeks, 104 Ala. 331, 16 So. 165, 53 Am. St. Rep. 50, and the recital of a consideration in the deed is the mere declaration of the grantor, and is not evidence against the creditor, Murphy v. Pipkin, 191 Ala. 111, 67 So. 675.
Defendants offered no proof, and made no effort to overcome the prima facie case thus established by complainants. There was therefore no error in the decree rendered, and it will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.