Cook v. Clark, Davis & Co.

• Citation: 212 Ala. 257,102 So. 213
• Decision Date: 04 December 1924
• Docket Number: 2 Div. 856
• Court: Supreme Court of Alabama
• Parties: COOK v. CLARK, DAVIS & CO. et al.

102 So. 213

212 Ala. 257

COOK v. CLARK, DAVIS & CO. et al.

2 Div. 856

Supreme Court of Alabama

December 4, 1924

Appeal from Circuit Court, Wilcox County; Joseph H. James, Special Judge.

Creditor's bill by Clark, Davis & Company, a partnership, and the Central Alabama Dry Goods Company, a corporation, against Dannie L. Cook. From a decree overruling demurrer to the bill, respondent appeals. Affirmed.

Sam Lee Jones, of Camden, and Craig & Craig, of Selma, for appellant.

Stevens McCorvey, McLeod & Goode, of Mobile, Pettus, Fuller &amp Lapsley, of Selma, and Bonner & Miller, of Camden, for appellees.

SAYRE J.

By their bill in this cause appellees sought a decree setting aside an assignment of insurance policies on his life by Floyd F. Cook, now deceased, to appellant. The averment, to state the substance of the bill in brief, is that deceased being insolvent and in the last stages of pulmonary tuberculosis, did, with intent to hinder, delay, or defraud complainants and his other creditors, transfer the two policies in question, both theretofore payable to his estate, to defendant, his sister, who knew of his insolvency, and for a grossly inadequate consideration, or none at all, by changing the beneficiary therein, or otherwise. It is further shown that defendant has collected the amounts named by the policies, and decree against her for the same is prayed. Defendant's demurrer to the bill was overruled.

The form of the transaction by which property liable to the satisfaction of the demands of creditors is fraudulently sought to be placed beyond their reach is immaterial. All such transactions are avoided on the prayer of creditors. As against existing creditors, a voluntary conveyance is per se fraudulent. The averments of the bill definitely bring the transactions alleged in the bill under the rule of the foregoing principles. Lehman v. Gunn, 124 Ala. 213, 27 So. 475, 51 L.R.A. 112, 82 Am.St.Rep. 159.

It cannot be presumed on demurrer that defendant had any vested interest in these policies or their proceeds by reason, for example, that she had paid premiums. If, by reason of that or any other fact, defendant had an interest in these policies such as put them beyond the reach of creditors, that is matter of defense. To indulge the presumption suggested by defendant would involve more than a construction of the bill against the pleader; it would involve an assumption of an independent fact as to...