Boutwell v. Spurlin Mercantile Co.

• Decision Date: 27 November 1919
• Docket Number: 4 Div. 809
• Parties: BOUTWELL et al. v. SPURLIN MERCANTILE CO.
• Court: Alabama Supreme Court

83 So. 481

203 Ala. 482

BOUTWELL et al. v. SPURLIN MERCANTILE CO.

4 Div. 809

Supreme Court of Alabama

November 27, 1919

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

Bill by the Spurlin Mercantile Company against J.T. Boutwell and others to declare a conveyance fraudulent and void as made to hinder and delay creditors. Decree for complainant, and respondents appeal. Affirmed.

The facts sufficiently appear from the opinion.

J.A Carnley, of Elba, for appellants.

E.O Baldwin and J.L. Murphry, both of Andalusia, for appellee.

SOMERVILLE J.

In a creditor's suit to subject property fraudulently conveyed by his debtor, "when the complainant shows that his debt antedates the conveyance, the grantee must then show that he paid a valuable consideration--substantial, and not merely nominal. Thereupon the complainant must show that the grantee had notice of an intent by the grantor to hinder, delay, or defraud his creditors." London v. Anderson Brass Works, 197 Ala. 16, 72 So. 359.

The bill of complaint in this case alleges that the grantor's debt to complainant was in existence when the conveyances in question were made to the several respondents on February 24 1910. This allegation was, of course, not supported by the mere exhibition of a judgment rendered thereon at a later date. Lawson v. Ala. Warehouse Co., 73 Ala. 289. But the president of the complainant corporation testified that he had personal knowledge of the prior existence of the account; and the bookkeeper who sold the merchandise testified to the fact of the sale and the price charged therefor, after refreshing his recollection by examination of the ledger entries made by himself.

The ledger entries, not being the original entries of the transactions in question, were not admissible as evidence of the account, but were properly used by the witness as memoranda to refresh his recollection.

The prior existence of the account against respondents' grantor was therefore prima facie shown by the testimony referred to, and the burden was cast upon respondents to show its payment or nonexistence, as to which no evidence seems to have been adduced.

The several conveyances by which the grantor disposed of the 80-acre tract were mere deeds of gift, and were constructively fraudulent and void as to complainant's prior claim of indebtedness against the grantor, unless, by reason of its homestead character, it was not subject to the payment thereof.

Respondents' answer set up the claim that this tract was at the time of these conveyances a part of the grantor's homestead, and that this homestead was less than 160 acres in area and $2,000 in value, and that, being exempt as a homestead, its conveyance could not be in fraud of creditors. Pollak v. McNeil, 100 Ala. 203, 13 So. 937.

The trial court held, upon the evidence adduced, that the value of the homestead in question was in excess of $2,000, and that the 80-acre tract was therefore subject to the debt, and ordered that so much of it be sold by the register as might be necessary, "by selling each of said 40's separately, unless the sale of one of them is sufficient."

The burden of proof as to the value of the homestead within the limit of $2,000 was on respondents. The testimony on this issue, pro et con, is apparently about evenly balanced, and, having been taken viva voce before the trial judge, we would not be justified in overruling his finding that the entire homestead of the grantor, including the small tract of his residence and the 80-acre tract here in question, was in 1910 worth substantially in excess of $2,000, and was, as to such excess, subject to the payment of the grantor's debts.

It is insisted on behalf of appellants that the final decree was erroneous at least in its failure to limit the satisfaction of complainant's judgment to the excess value of the value of the...