Howell v. Bowman

• Decision Date: 04 February 1892
• Citation: 10 So. 640,99 Ala. 100
• Parties: HOWELL v. BOWMAN ET AL.
• Court: Alabama Supreme Court

10 So. 640

99 Ala. 100

HOWELL v. BOWMAN ET AL.

Supreme Court of Alabama

February 4, 1892

Appeal from circuit court, Cherokee county; JOHN B. TALLY, Judge.

Action by James H. Howell against James W. Bowman. Judgment for plaintiff. An execution was levied on certain personal property in the possession of defendant, and a claim to the property levied on was interposed by H. W. Cardon, as trustee under a deed of trust executed by defendant to secure the payment of his promissory note to R. T. Ewing. Judgment for claimant. Plaintiff appeals. Reversed.

On November 15, 1884, previous to the claim of the present suit by the plaintiff, the defendant, James W. Bowman, executed a deed of trust to the claimant, H. W. Cardon, for the benefit of one R. T. Ewing, to whom said Bowman was indebted; the consideration named in the deed being $482. The testimony of the claimant tended to show that the consideration of said trust-deed was a past indebtedness due by the said Bowman to Ewing, and that the said indebtedness consisted of various transactions between the said Ewing and Bowman. Some of the items were notes given by said Bowman to one Mrs. Tate, the mother-in-law of Ewing, and transferred by her to Ewing. On these Tate notes a greater rate of interest than 8 per cent was charged by Mrs. Tate, but in all the demands and debts due Ewing by said Bowman only 8 per cent. interest was charged. It was further shown for the claimant that, at the time of the execution of said trust-deed for the benefit of said Ewing, he did not know of the existence of the plaintiff's debt against said Bowman. The plaintiff objected and duly excepted to the court's allowing the claimant to introduce in evidence the trust-deed and the note made by said Bowman to said Ewing on November 15, 1884, which evidenced Bowman's indebtedness to Ewing. Upon the examination of said R. T. Ewing, he was allowed, against the plaintiff's objection and exception, to refresh his memory by reference to two memoranda,-one made shortly after the transactions which resulted in the execution of the trust-deed, and the other just a short time before the trial of the present suit, which took place in 1890. This witness further testified, against the objection and exception of the plaintiff, that there had been various transactions between him and said Bowman, and that there were other notes given by said Bowman to him, witnessing his prior indebtedness.

The court, among other things, charged the jury as follows "The burden is first upon the plaintiff to make out his case. If the evidence satisfies you that the sheriff's deputy, having an execution issued by the justice of the peace on a judgment in favor of plaintiff against the defendant, found the property in controversy in the possession of the defendant, and he levied that execution upon such property, then, prima facie, that property would be liable to satisfy such execution. This would make out plaintiff's case. The burden would then be shifted upon the claimant to show a better claim to such property. If, upon considering the trust-deed under which claimant claims title to the property, in connection with the evidence offered with it, you find the same was given to secure a debt justly due from the defendant, then you would be authorized to find that the property, without more evidence, belongs to the claimant. Here the question of fraud in the execution of said trust-deed presents itself. The plaintiff insists that upon the whole evidence such conveyance is fraudulent and void. The burden of proving it is upon him. Upon proving a valuable consideration in the form of a just debt due from Bowman to Ewing, and the execution of the instrument to secure the same, the law presumes it was done in good faith without further evidence, and the burden is cast upon the plaintiff to prove the fraud,-to prove a state of facts which will warrant you in drawing the conclusion that it was in bad faith, or done for the purpose of hindering, delaying, or defrauding creditors of Bowman." The plaintiff excepted to this portion of the general charge of the court, and separately excepted to the court's refusal to give each of the following charges requested by him in writing:

(1) "If the jury find, from the evidence, that, at the time of the execution of the deed of trust under which Capt. Ewing claims the property that was levied upon by the execution in favor of Howell, Howell was a creditor of Bowman, and Ewing knew it, and Ewing knew that Bowman was in failing circumstances, and took the deed of trust upon all of Bowman's visible and tangible property, stipulating in said trust-deed for a postponement of foreclosure of said trust-deed for a period of twelve months, and permitted Bowman to retain the possession of the personal property mortgaged, and Howell's execution was levied upon the property described in the officer's return on said execution, Ewing is not entitled to recover in this action." (2) "If the jury find from the evidence that the property in controversy was of a perishable nature and it, with other property included in the deed of trust was all the visible property that Bowman had, and he was permitted to remain in possession of the property, and use it for his own benefit, by the trustee or Capt. Ewing, and Capt Ewing knew at the time of the execution of the deed of trust that Bowman had other creditors, who would be hindered or delayed in the collection of their debts, the trust is void as to the property levied on, and, if it was in possession of Bowman at the time of the levy of the execution, that the plaintiff is entitled to recover in this action." (3) "That unless the jury find, from the evidence, that the notes in evidence, claimed by Ewing to have been paid off by him, were based on a valuable consideration, then they are no part of the consideration of his debt claimed by him to support the claim suit. The mere fact that he paid them off at the request of Bowman does not raise any consideration in favor of the claimant." (4) "If the jury find, from the evidence, that, at the time of the execution of the deed of trust upon which the claimant relies in this case, (to-wit, the trust-deed executed on the 15th November, 1884,) Bowman was in failing circumstances, and Ewing Knew it, and knew that Bowman had other creditors, who would be hindered or delayed in the collection of their debts against Bowman, and Ewing knew that the property conveyed by said trust-deed was all, or almost the whole, of the visible and tangible property that Bowman owned, and that the property conveyed by the deed of trust was equal in value to fifty per cent. more than the debt secured by it, and that Ewing gave Bowman twelve months' time within which to pay the debt secured by the mortgage or trust-deed, then the deed of trust is void, and the claimant can't recover in this action." (5) "That if Bowman executed the deed of trust to hinder, delay, or defraud creditors, then if any fact or circumstance which, if followed up by Ewing, would have led him to discover the fraudulent intent of Bowman, had come to Ewing's knowledge previous to the execution of said deed of trust, in that event Ewing would be held in law as being a party to the fraud, and the deed of trust void as to plaintiff." (6) "If the jury find, from the evidence, that Bowman executed the deed of trust for the purpose of hindering or delaying his other creditors, (if they find he had other creditors,) and Ewing knew it, or knew facts that were sufficient to excite suspicion in the mind of a reasonable man as to the good faith of Bowman in executing the deed of trust, which, if followed up, would have led to a discovery of his bad faith, then Ewing is chargeable with knowledge of the bad faith of Bowman in executing said trust-deed, and the claimant cannot recover in this action." (9) "Every man is presumed to intend the necessary consequence of his acts; and if an act necessarily delays, hinders, or defrauds creditors, then the law presumes that it is done with the intent to delay, hinder, or defraud them." (11) "If the jury, from the evidence in this cause, believe that, at the time the execution in favor of Howell was levied upon the property in controversy, the property was in possession of Bowman; that the plaintiff thereby established a prima facie case, and it then became incumbent upon the claimant to establish his right to the property, and in order to do so he must show not only the existence of a debt, but that it is a valid debt, and that the conveyance was executed in good faith to secure that debt, and for no other purpose, before the claimant is entitled to recover; and if the jury find, from the evidence, that the deed of trust was executed and accepted for the purpose of hindering or delaying other creditors of Bowman; if they find that Bowman had other creditors, or, for the purpose of tying up the property of Bowman from his other creditors, Bowman was permitted to retain the possession of the property mortgaged,-then the claimant is not entitled to recover." (14) "That unless the jury find, from the evidence, that the deed of trust introduced in this case was executed for a valuable consideration and in good faith, they must find for the plaintiff." (17) "That if the plaintiff has made out a prima facie case in this action under the charge of the court, then it devolves on the claimant to show, by proof to a reasonable certainty, that his claim suit is based on a claim for valuable consideration, and that his deed of trust was executed in good faith." (20) "The law does not permit a person in failing circumstances to mortgage all his property to pay a selected creditor, and to put off the law-day of the mortgage to a distant day, and in the mean time retain the...