Brown v. Andrews, 3 Div. 482

• Decision Date: 13 January 1972
• Docket Number: 3 Div. 482
• Citation: 257 So.2d 356,288 Ala. 111
• Parties: Barto BROWN, Jr., et al. v. Rufus Terrell ANDREWS et al. , 482--X.
• Court: Alabama Supreme Court

Page 356

257 So.2d 356

288 Ala. 111

Barto BROWN, Jr., et al. v. Rufus Terrell ANDREWS et al.

3 Div. 482, 482--X.

Supreme Court of Alabama.

Jan. 13, 1972.

Edwin C. Page, Jr., Evergreen, for appellants.

Windell C. Owens, Monroeville, for appellees and cross-appellant.

McCALL, Justice.

The appellants, Barto Brown and others, are judgment creditors of the appellee Rufus Terrell Andrews, the husband of the appellee Juanita B. Andrews. The appellants seek to have the court determine and declare the rights, status and other legal relations of the two appellees in a tract of land consisting of some 166 acres and to have it levied upon and sold under execution to satisfy their judgment against Rufus Terrell Andrews.

The appellees are grantees in two deeds executed by N. Allen and wife, Viva Lee Allen, in 1960, conveying to them the real property in question during their joint lives, and upon the death of either of them, then to the survivor of them in fee simple. After these conveyances were made to them, Andrews and his wife executed deeds, in September 1961, conveying the real property described in the Allen deeds to a straw man, who in turn reconveyed a fee simple title to Mrs. Andrews, alone. We are concerned with what effect, if any, these last two conveyances and their subsequently being set aside for fraud had upon the estates of the Andrewses in the land.

In an earlier case between these same parties, Brown v. Andrews, 281 Ala. 598, 206 So.2d 607, the same appellants as here filed a bill to vacate and set aside these two deeds as being fraudulent. The bill in that case sought to have the entire acreage decreed to be Mr. Andrews' land, to be impressed with a lien, and to be sold to satisfy the appellants' existing moneyed claim, for which the appellants prayed also that a judgment be rendered against Andrews for the amount of his indebtedness. The circuit court in equity in that case, held that the two conveyances: (1) from the Andrewses to the straw man, and (2) from the straw man to Mrs. Andrews, were null, void and of no legal effect. The court ordered the two deeds vacated and set aside on the ground they were made to defraud the creditors of Rufus Terrell Andrews. The trial court further rendered a moneyed judgment, including an attorney's fee, in favor of the appellants against Andrews for which, together with all costs expended, the court ordered execution to issue. The court impressed a lien against the interest of Mr. Andrews in the land to secure the indebtedness for which the judgment was rendered. The Supreme Court affirmed the final decree of the trial court in that case, but further held that, there being no adjudication in the trial court's decree, defining the interest that Mrs. Andrews acquired under the survivorship deeds from the Allens, the court would not volunteer to define the interest she acquired, although the court said that the case of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565, is pertinent to the subject. The Supreme Court also affirmed the order of the trial court impressing a lien on the interest of Mr. Andrews in the land without limiting or defining such real property interest.

In the instant case, the trial court decreed that the original deeds from N. Allen and wife, Viva Lee Allen, were the instruments by which the Andrewses hold their interests in the land, and that the language in the case of Bernhard v. Bernhard, supra, is conclusive of the interest of each appellee which the court held to be 'an undivided one-half interest in the property for life, plus the right to own the unencumbered whole if he survives his co-tenant.' The trial court further decreed in the instant case that the lien against the interest of Mr. Andrews, fixed by the former decree of the court, was a judgment lien to occupy the same position as any other judgment lien under the laws of the State of Alabama, but inferior to the existing mortgage lien of the Federal Land Bank of New Orleans, and that the appellants here have the right to insist that Mr. Andrews' interest be sold, and that the same should be sold. The trial court expressly stated though that its order should not be interpreted as an attempt to decree that a purchaser at the sale would have any greater right to have said lands partitioned or to occupy the same than Mr. Andrews has.

The Bernhard case, supra, which is referred to in the trial court's decree, holds that where the deed, under which the grantees took title to the property, conveyed the same to them as joint tenants with right of survivorship, the court must give effect to the intention of the parties as determined from the language which they use in the deed, and under such language as there used the parties intended to create, and did create, a tenancy in common during the joint lives of the tenants, with the right of survivorship in the survivor of them with each owning an undivided one-half interest in the property for life, plus the right to own the unencumbered whole, if one survives his contenant, and the court further held:

'* * * We think the language used and our cases indicate that a division may be had during the joint lives only with the consent of all grantees. * * *' Here the appellants' position seems to be that, by making these fraudulent conveyances, the cross contingent remainders were extinguished. Therefore, they maintain that at an execution sale of Mr. Andrews' interest in the land, freed from the fraudulent conveyances, a purchaser will acquire an undivided one-half fee simple estate in the land and become a contenant with Mrs. Andrews.

We are unable to agree with the appellants in their conclusion. Mr. Andrews never at any time owned any more than a life estate, with a contingent remainder in the whole. He conveyed away his interests in the land to the straw man who, in turn, reconveyed the whole fee simple estate to Mrs. Andrews. Our view is that vacating and setting aside the two fraudulent conveyances only made available for levy and sale under execution an estate for the life of Mr. Andrews in an undivided one-half interest. Our reason for so holding is that Tit. 20, § 7, Code of 1940, declares that fraudulent conveyances are void. But this court has held that the conveyance is valid as to all the world, except the creditors of the grantor. First National Bank of Birmingham v. Love, 232 Ala. 327, 337, 167 So. 703. Therefore, as to creditors, the fraudulent conveyance would appear to be voidable and not void. If this be the law, and we deem it is, it is only those who are injured by the fraudulent transaction who can complain. Continental Ins. Co. v. Dotson, 260 Ala. 499, 504, 70 So.2d 796; Heidt v. Wallace, 239 Ala. 246, 194 So. 501; McCurdy v. Kenon, 178 Ala. 345, 59 So. 489.

We think that under the two deeds to the Andrewses from N. Allen and wife, Viva Lee Allen, executed in 1960, each appellee grantee acquired and owned an undivided one-half interest for life in the subject property, and a contingent remainder in the whole. Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565; Owens v. Owens, 281 Ala. 239, 201 So.2d 396; Fretwell v. Fretwell, 283 Ala. 424, 218 So.2d 138; Shrout v. Seale, 287 Ala. 215, 250 So.2d 592. When the court set aside the conveyances as being fraudulent and fixed a judgment lien on the property of the appellee Andrews to secure the judgment debt, the only estate of Mr. Andrews in the real property, that could be subject to levy and sale under execution was and is now that estate in real property which is prescribed in the pertinent part of Tit. 7, § 519, Code of Alabama, 1940, which provides:

'Executions may be levied:

'On real property to which the defendant has a legal title, or a perfect equity, having paid the purchase money, or in which he has a vested legal interest, in possession, reversion, or remainder, whether he has the entire estate, or is entitled to it in common with others.'

Contingent remainders are not among the estates in real property that are subject to levy and sale under an execution as provided for in the above statute; therefore, Andrews' contingent remainder, prior to the fraudulent conveyances, could not have been subject to levy and sale under execution, Shrout v. Seale, 287 Ala. 215, 250 So.2d 592; Wright v. City of Tuscaloosa, 236 Ala. 374, 182 So. 72; nor could Andrews' contingent remainder have been subject to the judgment lien. Tit. 7, § 585; Shrout v. Seale, supra; Wright v. City of Tuscaloosa, supra. Only Andrews' life estate as a tenant in common with Mrs. Andrews could have been subject to levy and sale under execution, and, the purchaser of that estate will hold, with the other tenant, as tenants in common. Shrout v. Seale, supra.

It follows that since Andrews' contingent remainder could not have been subject to levy and sale under an execution, or subject to the judgment lien, the appellants were not injured by Andrews' conveyance of this contingent remainder and hence, cannot complain about its conveyance. Consequently, the only interest that was set aside and which is subject to levy and sale under execution, is the estate of Mr. Andrews for his life in an undivided one-half of the property.

The status of the title as we determine and hold is that the estate for the life of Mr. Andrews in an undivided one-half interest in the land is subject to sale, and the purchaser will acquire therein an estate for the life of Mr. Andrews. If Mrs. Andrews survives her husband, she will take the whole property at his death, because she owns all remainder interest in his undivided one-half as a result of the above mentioned conveyances. She also owns an estate in fee simple in the other undivided one-half interest under the same deeds. If Mr. Andrews survives his wife, her estates in the real property will descend and vest according to the laws of descent and distribution, in event she dies intestate, or, to the devisee named in her will, in event she dies testate.

Und...