Guyton v. Terrell
| Decision Date | 27 November 1901 |
| Citation | 132 Ala. 66,31 So. 83 |
| Parties | GUYTON ET AL. v. TERRELL. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Lamar county; Wm. H. Simpson Chancellor.
Bill by Susan M. Terrell against John S. Guyton and others. There was a decree overruling demurrers to the bill, and defendants appeal. Affirmed.
Nesmith & Nesmith, for appellants.
W. A Young, for appellee.
This bill is exhibited by Susan M. Terrell, a judgment creditor of John S. and N. B. Guyton, against said Guytons and several other persons who are alleged to be fraudulent grantees etc., of property and assets of the defendants in judgment, etc.; and it is also alleged that said Guytons, or John S., has property and effects subject to the satisfaction of said judgment, which they conceal, etc. It prays for the subjection of the property and assets so fraudulently conveyed, and for discovery of property, etc., concealed, and its subjection to complainant's judgment, etc. The affidavit to the bill was made by one J. H. Miller, and it is therein affirmed that said Miller "is the agent of Mrs. Susan Terrell, the complainant in the foregoing bill, and duly authorized to act as such agent in this matter; that the complainant, Susan M. Terrell, is a nonresident, and resides now in the state of Texas; and further that affiant, of his own knowledge, knows that the facts alleged in the original bill and the amendments thereto are true, as therein stated." Some of the facts alleged in the bill are stated as upon the knowledge of the complainant; i. e., positively and not upon information and belief. This affidavit positively affirms the truth of such facts as upon affiant's knowledge. Other facts are alleged thus: "Complainant is informed and believes, and alleges the fact to be," etc. The affidavit is an affirmation that the affiant knows that complainant was informed and believes as alleged, and as to both classes of allegations the verification is sufficient. Burgess v. Martin, 111 Ala. 656, 20 So. 506; Schilcer v. Brock, 124 Ala. 626, 27 So. 473.
There is no merit in the objection that the affidavit should have been made by the complainant herself. It sets "forth a sufficient reason why" the verification is not made by her. Code, p. 1205, rule 15.
The purpose of the bill is single. It seeks satisfaction of complainant's judgment out of the property of defendants in judgment, which is either held by fraudulent grantees or is concealed; and it is not open to the objections of multifariousness or misjoinder of parties respondent, for that it is filed against several alleged fraudulent grantees of such defendants, shown by the bill to be claiming through different transactions with the Guytons. Hinds v. Hinds, 80 Ala. 225; Hill v. Moone, 104 Ala. 353, 16 So. 67, and cases there cited; Henderson v. Bank, 123 Ala. 547, 26 So. 226. The form of the transaction by which it is alleged one of the defendants in judgment fraudulently disposed of his assets was this: With the intent to hinder, etc., the complainant, he loaned several sums of money to divers persons, and had them severally execute notes to his wife. On the case made by the bill, these borrowers, so far as complainant's rights are involved, owe the money to the defendant in judgment, and will have to pay it in satisfaction of the judgment. Surely they are proper, if not necessary, parties to the bill. So, also, was N. B. Guyton, one of the defendants in the judgment.
In respect of the mortgage by John S. Guyton to Redden, there are alternative averments: First, it is averred that the mortgage was given by Guyton with intent to hinder, delay and defraud his creditors, and that there was no consideration for it,--that it was a voluntary conveyance. This, of course, rendered it fraudulent and void, whether Redden knew or had notice of Guyton's covinous intent or not. The other averments in this connection are as follows: "That, if there was any debt owing from the said Guyton to the said Redden" at the time of the execution of said mortgage, ...
To continue reading
Request your trial
-
Sims v. Riggins
...verification is not sufficient. Rule 15, Chancery Practice, p. 1532, Code; Woodward v. State, 173 Ala. 7, 55 So. 506; Guyton et al. v. Terrell, 132 Ala. 66, 31 So. 83. the defect in the affidavit had been pointed out on the trial, unless cured, the injunction would have been discharged. Woo......
-
Green v. Martin
... ... Woodward v. State, 173 Ala. 7, 13, 55 So. 506; ... Kinney et al. v. Reeves & Co. et al., 142 Ala. 604, ... 39 So. 29; Guyton et al. v. Terrell, 132 Ala. 67, 31 ... So. 83. The observance of the foregoing rules should have ... been complied with ... The ... ...
-
People's Bank of Hartsville v. Helms
...conveyance." Skinner v. Judson, 8 Conn. 528, 21 Am. Dec. 691; Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371. In Guyton v. Terrell, 132 Ala. 66, 31 So. 83, syllabus states: "Where a bill seeking satisfaction of complainant's judgment out of property of the debtor fraudulently conveyed a......
-
People's Bank Of Hartsville v. Helms
...conveyance." Skinner v. Judson, 8 Conn. 528, 21 Am. Dec. 691; Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371. In Guyton v. Terrell, 132 Ala. 66, 31 So. 83, the syllabus states: "Where a bill seeking satisfaction of complainant's judgment out of property of the debtor fraudulently convey......