American Nat. Bank & Trust Co. v. Powell

• Citation: 235 Ala. 236,178 So. 21
• Decision Date: 16 December 1937
• Docket Number: 1 Div. 966
• Parties: AMERICAN NAT. BANK & TRUST CO. v. POWELL et ux.
• Court: Supreme Court of Alabama

178 So. 21

235 Ala. 236

AMERICAN NAT. BANK & TRUST CO. v. POWELL et ux.

1 Div. 966

Supreme Court of Alabama

December 16, 1937

Rehearing Denied Jan. 20, 1938

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Creditor's suit by American National Bank & Trust Company against Oliver H. Powell and wife. From a decree dismissing the bill complainant appeals.

Reversed rendered, and remanded.

Inge, Stallworth & Inge and Thos. A. Hamilton, all of Mobile, for appellant.

Mahorner & Mahorner, of Mobile, for appellees.

KNIGHT Justice.

The bill in this cause was filed by complainant, appellant here, against the respondents, Oliver H. Powell and Violet D. Powell, husband and wife, and seeks to have certain transfers of property by the husband to the wife set aside and canceled, as being fraudulent and void as against the claims of complainant, an existing creditor.

It appears from the averments of the bill that the complainant, a banking institution in the city of Mobile, loaned to the respondent Oliver H. Powell on the 17th or 18th day of March, 1930, on his unsecured promissory note, $28,000. On the day the loan was made, and as a basis of credit, the respondent Oliver H. Powell submitted to the complainant a statement in writing which purported to show the property holdings, at the time, of said respondent, the value of the same in detail, and amount of his liabilities. This statement showed that the total assets of said respondent were at that time, March 17, 1930, $363,306, with aggregate liabilities of $14,090, leaving net worth of $349,216. Listed as assets:

Cash in Banks .............................. $20,050.00

Liberty Bonds ............................... 20,000.00

Partnership interest in Powell Barge Co.... $166,072.00

Staples"Powell Realty Co..................... 17,804.00

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183,876.00

Stocks ..................................... 139,380.00

The said respondent also represented that he had life insurance payable to his estate in the sum of $25,000.

It further appears from the bill that the said respondent made some payments on his said indebtedness, so that on March 3, 1932, there remained a balance due on this transaction to complainant of $20,000; that on March 7, 1932, after the maturity of said note, and while there remained a balance due thereon of $20,000, the said respondent gave complainant another statement showing himself insolvent to the extent of $5,309.35. This second statement showed cash $886.65, and did not show the Liberty bonds, nor the stock listed in the first statement as being worth $139,380. It showed the value of the interest of said Powell in the Powell Barge Company to be $25,000 instead of $166,072. It also showed that the insurance, instead of being payable to his estate, was in fact payable to his wife, the said Violet D. Powell.

It also appears from the bill that the complainant on February 23, 1933, recovered a judgment against the said Oliver H. Powell on said note in the sum of $19,743.73, and which remained wholly unpaid.

The bill then charges that the stock listed in his (Powell's) statement to the complainant, when the loan was made, at $139,380, and which was stock in the Powell-Feeks-Duval Realty Company, had been transferred to the respondent Violet D. Powell, and that such transfer "was made for the purpose and with the intent to hinder, delay and defraud his creditors, and was voluntary and without any valuable considerations, or if complainant is mistaken as to the consideration, then for an insignificant and wholly insufficient consideration, and that the respondent Violet D. Powell accepted the same with the same purpose and intent."

The same charge was made with respect to the transfer to his said wife of the Liberty bonds, and his interest in the Powell Barge Company. And the same charge was made with reference to the change in the beneficiary of the life insurance policy.

The bill then contains the further omnibus charge: "Complainant further alleges that all of the aforementioned transfers and assignments were voluntary and void and in fraud of complainant's rights."

In their answer, the respondents admit that the complainant on March 17th or 18th loaned the said respondent Oliver H. Powell the sum of $28,000, as charged in the bill; that a large part of this indebtedness still remains unpaid; that on February 23d, 1933, the complainant recovered a judgment on the note evidencing said indebtedness for $19,743.73, and that this judgment remains wholly unpaid.

The respondents, in their answer, admit, also, that the said Oliver H. Powell had transferred the stock (Powell-Feeks-Duval Realty Company) and his interest in the Powell Barge Company to his wife after his indebtedness to the complainant had been contracted, and the liability therefor had been incurred. The respondents insist, however, that the transfers were, in each instance, supported by a sufficient valuable consideration moving from the wife to the husband, and they deny that said transfers were made in fraud of any rights of the complainant, or that the respondents, or either of them, in making or accepting said transfers, intended to hinder, delay, or defraud the complainant in the collection of its indebtedness. In short, they assert that said transfers were made in good faith, supported by sufficient valuable considerations, without fraud or collusion, or the semblance of either, and were, therefore, valid.

At hearing, the respondents amended their answer by adding thereto the following: "And respondents further allege that the Twenty-eight thousand Dollar ($28,000.00) note of Oliver H. Powell dated March 17th, 1930, was reduced by payments made by him and renewals given for the balance due from time to time up to the 14th day of December, 1931, in the sum of $22,500.00, and that on, to-wit, the 3rd day of May, 1932, the respondent Oliver H. Powell affected a new agreement with the complainant for the payment of said $22,500.00 note by paying $2500.00 cash on account of same and giving to complainant a new note for $20,000.00 secured by mortgage on the undivided interest of said Oliver H. Powell in that real property in the City and County of Mobile, Alabama, situated at the Northeast corner of Royal and St. Michael Streets and known as the Staples-Powell Building. And respondents allege that this agreement for the payment of $2500.00 cash and the substitution of said $20,000.00 note secured by the aforesaid mortgage, was pursuant to an agreement with complainant by the respondent Oliver H. Powell after full knowledge on the part of complainant of all of the facts alleged in the bill of complaint, therein alleged to have existed prior to the date of said mortgage."

Upon final submission, the court dismissed the complainant's bill, holding that the transfers were supported by substantial and valuable considerations, and that there was "no intent on the part of Violet D. Powell to defraud, hinder or delay the complainant in collecting its debt."

The testimony was given ore tenus before the court, and we must, therefore, accord to the judgment of the trial court the same weight and effect that we would give to the verdict of a jury, and must not disturb the court's conclusion on the evidence unless it is plainly erroneous. Jackson v. Jackson, 204 Ala. 257, 85 So. 482; Fitzpatrick v. Stringer, 200 Ala. 574, 76 So. 932; Curb v. Grantham, 212 Ala. 395, 102 So. 619, and Wiegand v. Alabama Power Co., 220 Ala. 620, 127 So. 206.

While we have steadfastly held to the above rule, on appeals to this court, where the evidence was given ore tenus, nevertheless we have, with equal tenacity, held that "This court has not renounced its duty nor neglected its power to revise the verdicts of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong." Twinn Tree Lumber Co. v. Day, 181 Ala. 565, 569, 61 So. 914, 915, Carraway v. Graham, 218 Ala. 453, 118 So. 807, 811, and Columbus Elec. & Power Co. v. Downs, 214 Ala. 104, 105, 106 So. 593.

On this appeal, therefore, we are required to review, and consider for ourselves, the evidence offered upon the hearing, and determine whether, after making all reasonable allowances and indulging all reasonable intendments in favor of the court below, we are clearly of the opinion that the finding and judgment of the trial court are wrong. In doing this, the court is solemnly enjoined to "proceed with great caution; but it should leave no evident mistake unrighted." Carraway v. Graham, supra.

We need not consider here any question as to the fraud charged in the transfer of the Liberty bonds, or as to the insurance policy, as the appellant has abandoned this phase of its case.

This abandonment of any claims against the Liberty bonds and the life insurance policy narrows our consideration to two items, viz., the alleged fraudulent transfers of the stock in the Powell-Feeks-Duval Realty Company and the interest of the respondent Oliver H. Powell in the Powell Barge Company. However, we shall be forced to make some references to the Liberty bonds in the discussion of the case as made by the evidence.

The contention of the respondents is, that the true consideration paid by Mrs. Powell for the stock in the Powell-Feeks-Duval Realty Company was (a) a note of Mrs. Powell, given to her husband for $4,000, and (b) the cancellation to extent of $14,000 of an alleged antecedent debt due by the husband to her, thus making this purchase price paid $18,000.

It is also insisted by the respondent that the consideration paid...