Gordon v. McIlwain

• Decision Date: 14 June 1887
• Parties: GORDON v. MCILWAIN AND OTHERS.
• Court: Alabama Supreme Court

2 So. 671

82 Ala. 247

GORDON v. MCILWAIN AND OTHERS.

Supreme Court of Alabama

June 14, 1887

Appeal from city court of Selma county.

Bill in equity to set aside conveyance for fraud.

The opinion states the facts.

John C. Reid and W. R. Nelson, for appellant.

Sumter Lea and J. C. Compton, contra.

STONE C.J.

This is a suit in equity by a judgment creditor, and seeks to subject real estate to the payment of the judgment, on the alleged ground that the debtor transferred his property to delay hinder, and defraud his creditors. The bill charges that on January 19, 1885, appellant, as plaintiff, recovered a judgment against Samuel P. McIlwain, on which execution had been issued, and returned no property found; that six days before that time, viz., January 13, 1885, the said Samuel P. McIlwain conveyed his real estate by warranty deed to John H. McIlwain, his brother, on a recited consideration of $6,000, and that in fact this consideration was simulated, and no valuable consideration was given for the conveyance; that by this conveyance the said Samuel P. was left without property subject to his debts, and was practically insolvent; that no change of the possession of the land took place, and Samuel P. remained in the enjoyment of the same, and this conveyance was made with intent to hinder, to defraud, and to prevent the said Gordon from collecting his said claim. There was an amendment of the bill, which averred that, immediately or soon after acquiring the title by said conveyance, John H. McIlwain, the grantee, on a consideration simply good, but not valuable, conveyed the land to the wife and children of the said Samuel P. The question is as to the bona fides of the conveyance to John H. McIlwain. The only evidence this record supplies of a debt from Samuel P. McIlwain is the record of judgment recovered by complainant against him, six days after the conveyance of the land by the latter to his brother John H. To maintain the complainant's suit, under such circumstances, it is not enough that the conveyance was voluntary, and without consideration. It must appear that the conveyance was made with intent to defraud either the complainant or some one else. Lawson v. Alabama Warehouse Co., 73 Ala. 289.

The transaction in this case was between brothers, and the next day after receiving the conveyance the purchasing brother made a voluntary reconveyance of the entire property back to the wife and children of his vendor. The consideration was an alleged indebtedness from the latter to the former. No present consideration is claimed to have been paid. Only John H., the purchaser, was examined as a witness to prove the extent and nature of the consideration, while the grantor, Samuel P., who must have had equal knowledge, was not examined. John H. testified that when he purchased the land he knew the suit was pending against Samuel P., which culminated in the judgment this suit seeks to collect. Fear of losing the claim, or a desire to realize the amount due, could not have induced the purchase, for John H. did not retain one cent of the product of the transaction. He required his brother to impoverish himself by surrendering his entire estate, that he might, without consideration, reconvey it to the wife and children of the brother he had thus impoverished. Yet he testifies that when he received the conveyance neither his brother nor any member of his family was informed of his intention to reconvey.

Let us however, further scan the testimony of this only witness who attempts to prove the consideration of this conveyance to him. Each of the brothers had a wife and children, and the occupation of each was that of farming. This witness gives no account of any income the purchaser had realized, except the patrimony, which came alike to himself and his brother Samuel P. in 1880, and the profits of the farming operations. The division of the property was into three equal shares, and amounted to about seven thousand dollars to Samuel P., and, we suppose, the same amount to each of the others. Whether this division was in property, or in money, or partly in property and partly in money, the record does not inform us, further than that the lands in controversy came to Samuel P. from his father's estate. Part of the consideration, according to his witness, was paid by him, "by receipting S. P. McIlwain, or releasing him of and for a debt of sixteen hundred dollars and upwards which he owed me. This debt was due me on the difference in valuation of the lands belonging to our father's estate. On a division, he owed me that amount, and in paying him for the land mentioned in said deed he agreed to take and did take said debt as cash, and as a part of said consideration or deed-money. I mean by paying him the cash of four or five thousand dollars above set forth, that I had let him have money at sundry times before that, amounting, on the day said deed was delivered, to the said sum in cash. I am unable to give the exact dates and several amounts advanced and paid the said S. P. McIlwain, item by item, without having the drafts given for the money in my hands, and I have not said drafts with me. But I can give some of the amounts which go to make up said sum, to-wit, one thousand dollars in 1869, eight to nine hundred dollars in 1876, and eight hundred and eighty-three dollars from fall of 1881 to spring of 1882." The foregoing is, in substance, all the witness testifies as to special items constituting the consideration, as remembered by him. This witness testifies further...