Freeman v. Pullen

• Decision Date: 06 February 1902
• Parties: FREEMAN ET AL. v. PULLEN.
• Court: Alabama Supreme Court

31 So. 451

130 Ala. 653

FREEMAN ET AL. v. PULLEN.

Supreme Court of Alabama

February 6, 1902

Appeal from chancery court, Limestone county; W. H. Simpson Chancellor.

Suit by J. D. Pullen, surviving partner, against R. E. Freeman and others. Decree for complainant. Defendants appeal. Reversed.

W. R Francis, for appellants.

E. W Godbey, for appellee.

TYSON J.

The bill in this cause was filed by a simple contract creditor to subject property alleged to have been fraudulently conveyed. On former appeal rulings on demurrer were reviewed, and the decree overruling them affirmed. 119 Ala. 235, 24 So. 57. The bill, as originally framed, sought to subject to the payment of the complainant's demand a piece of land consisting of 80 acres, called the "Limestone Land," which it was alleged had been bought by the deceased debtor, H. S. Freeman, in the name of his wife, and paid for with his money. On the return of the case, it being shown that the land sought to be subjected had been paid for in part by the rents of the Olive House, a hotel in Decatur which had formerly belonged to the deceased debtor, the complainant amended his bill, and alleged that the conveyance by which the deceased debtor had parted with the hotel and other property in Decatur, and which had been reconveyed by his grantee to his wife, was also fraudulent, and sought to have the rents which had been collected by the wife condemned as property of the deceased debtor, and so much of them as had not been appropriated to the payment of the Limestone property applied to the payment of his debt. The amendment alleged in reference to the Limestone land, sought to be subjected in the original bill, that H. S. Freeman, the deceased debtor, had not completed the purchase when he died, but that he had paid $65 of the purchase money to Rosa Edwards, one of Scearce's creditors, at his instance, and held a deed to his wife which was unacknowledged or witnessed; that after his death the defendant Oldacre, the son-in-law of the defendant R. E. Freeman, completed the purchase with Scearce for Mrs. Freeman, and paid thereon $9, and $28 to J. H. Edwards for Rosa Edwards at the request of Scearce, and agreed to pay the further amount of $90 to P.J. Edwards for Scearce; and alleged that the sums of $28 and $9 were paid out of the assets of H. S. Freeman's estate or from the money derived from the sale of the property to Hilliard Tate. It will be well to note that the complainant does not seek to condemn to the payment of his debt the rents which had been appropriated to the purchase of the Limestone land. He sought to subject the Limestone land in lieu of these rents, as well as the $65 alleged to have been paid to Rosa Edwards as purchase money at the instance of Scearce. Nor does he seek by his amended bill a personal decree against Mrs. Freeman for these items. It is only for any surplus of complainant's debt, interest, and cost which may remain after applying thereto the proceeds of the sale of the Limestone lands a decree in personam is sought against Mrs. Freeman.

The bill as amended was demurred to, and decrees upon the demurrers were entered August 8, 1899, and the defendants given 15 days in which to answer. Many of the assignments of error relate to the overruling of the demurrer to the amended bill. None of these are well taken. There is no departure repugnancy, or inconsistency between the amendment and the original bill. If the Limestone property was paid for with the assets of H. S. Freeman's estate, of course it would be liable for Freeman's debts as against all persons except bona fide purchasers for value; and when it is shown that the payment was in part made with the rents from the Olive Hotel, standing in the name of Mrs. Freeman, it was competent for the complainant to aver and show that the property from which the rents were derived also had been fraudulently conveyed and was in fact the...