Greer v. Altoona Warehouse Co.

• Decision Date: 18 January 1945
• Docket Number: 6 Div. 289.
• Citation: Greer v. Altoona Warehouse Co., 246 Ala. 297, 20 So.2d 513 (Ala. 1945)
• Parties: GREER et al. v. ALTOONA WAREHOUSE CO.
• Court: Alabama Supreme Court

20 So.2d 513

246 Ala. 297

GREER et al. v. ALTOONA WAREHOUSE CO.

6 Div. 289.

Supreme Court of Alabama

January 18, 1945

P A. Nash, of Oneonta, and Finis E. St. John, of Cullman, for appellants.

J T. Johnson, of Oneonta, for appellee.

BROWN Justice.

The bill in this case was filed by appellee, a judgment creditor against R. M. Greer, the judgment debtor, his wife and son-in-law, seeking to enforce a judgment lien arising from the registration of a certificate of the clerk of the court rendering said judgment in the office of the judge of probate, under the statute [Code 1940, Tit. 7, § 588], and to cancel certain conveyances alleged to be voluntary and made by the debtor to the other defendants to hinder, delay and defraud complainant in the collection of its debt.

By answer the defendants denied the existence of the indebtedness on which said judgment was rendered, making the answer a cross bill seeking to vacate and annul said judgment, on the ground that said Greer had a good defense to the action culminating in the judgment, which he was prevented from making on account of accident, mistake or fraud, without negligence on his part.

The defendants Greer and wife, in their answer, separately claimed as a homestead, exempt from said alleged judgment lien, all the right, title and interest said R. M. Greer had in the land upon which the original bill as amended sought to fasten said lien.

The lands consisted of three tracts: I. Twenty-two acres, twenty acres of which lie in and constitute the East Half of the Southeast Quarter of the Northeast Quarter, Section 35, Township 10, Range 2, East; and two acres being a strip of land lying along the West line of said twenty in the West Half of said Southeast Quarter of the Northeast Quarter, the separate property of the wife. II. Twenty-two acres, jointly owned by Greer and wife as tenants-in-common, eighteen acres of which lie in the West Half of the Southeast Quarter of the Northeast Quarter and immediately west of the tract owned by the wife; and four acres lying along the West line of said last named twenty-two acres in the Southwest Quarter of the Northeast Quarter. Said tracts I and II contain forty-four acres more or less. III. The Northwest Quarter of the Southwest Quarter of Section 34, in said above named township and range, owned by R. M. Greer, and located about a mile or less from the forty-four acre tract.

The circuit court in the final decree granted relief to the complainant, cancelled the deed from Greer to his wife embracing said Tract No. III, and fixing a lien on said tract ordered the same to be sold for the payment of such judgment debt, and denied relief to the defendants in their cross bill and dismissed the same. In that decree the court sustained the claim of exemption as to Tracts Nos. I and II, declaring the same the homestead of defendants.

The evidence is without dispute that R. M. Greer had notice of the pendency of the action on the debt, appeared therein and defended the same on the ground that the note on which the appellee sued was a forgery, and under the general issue, that he was not indebted to the appellee, who was plaintiff in that suit.

The substance of the allegation of fraud upon which the cross bill is predicated was that one John Greer, a brother of the defendant, was the managing head of the appellee corporation and led him to believe that he would not press the suit in the circuit court and, for that reason he did not summons his witnesses to the trial. If that phase of his defense was correct, he should have applied to the trial court in the action at law for time to obtain the attendance of his witnesses. Roebling Sons Co. v. Stevens Electric Co., 93 Ala. 39, 9 So. 369. Moreover, it appears from the evidence in this case that, said John Greer was not an official of the appellee corporation at the time of said trial. We, therefore, concur in the conclusion of the circuit court that the defendants, appellants, failed to sustain the allegations of their said cross bill and the dismissal thereof was not error.

After the complainant proved the existence of its debt, antedating the conveyance of Greer to his wife, the defendants had the burden of proving the bona fides of the consideration and that it was not greatly...