Kirby v. Raynes

• Decision Date: 30 June 1903
• Citation: 35 So. 118,138 Ala. 194
• Parties: KIRBY ET AL. v. RAYNES ET AL.
• Court: Alabama Supreme Court

35 So. 118

138 Ala. 194

KIRBY ET AL. v. RAYNES ET AL.

Supreme Court of Alabama

June 30, 1903

Appeal from Chancery Court, Marshall County; W. H. Simpson Chancellor.

Bill by J. Frank Raynes and another against Frank M. Kirby and others. From a decree in favor of complainants, defendants appeal. Affirmed.

It was averred in the bill that on April 3, 1897, the defendant Frank M. Kirby being indebted to the complainants on account of goods, wares, and merchandise, executed to the complainants a promissory note evidencing said indebtedness and that on the same day, for the purpose of securing the payment of said indebtedness, the said Frank M. Kirby and his wife, Lizzie Kirby, executed to complainants a mortgage on certain real estate; that said note, and the debt evidenced thereby and secured by said mortgage, was due and unpaid. It was then averred that the defendants Charles Webb and Thomas E. Morgan were in possession of said lands, asserting some character or kind of title or interest therein which was unknown to complainants, but that the mortgage which Kirby and defendant had executed to the complainants was duly recorded, and Webb and Morgan had full knowledge and notice of complainants' claim.

The prayer of the bill was that said mortgage be foreclosed, and that said lands be sold for the payment of said indebtedness.

The defendants filed an answer, in which they admitted the execution of the mortgage, but averred that said mortgage was given to the complainants for the purpose of hindering delaying, and defrauding one W. Seibold, to whom the defendant Frank M. Kirby was indebted. Evidence was introduced, the tendencies of which is sufficiently stated in the opinion.

Street & Isbell, for appellants.

John A Lusk, for appellees.

HARALSON J.

What claim the defendants, Webb and Morgan, have in this case as creditors of the defendants has not been shown. It does not appear that they are the owners of the land embraced in the mortgage here sought to be foreclosed, by conveyance, executed by the defendants to them, nor that they have a mortgage or other incumbrance on it, superior to the mortgage of complainants. It is true, reference is made, incidentally, in the evidence, to a sale by defendants to them, but when it occurred, is not shown, nor whether the sale, if made, was ever executed. So that, if they are creditors of defendants, there is no allegation or proof to that effect, nor are they making claim as prior or superior creditors to complainants as against their mortgage. The litigation is really between the complainants and the defendants, Kirby and wife. They set up, that they executed the mortgage to complainants to hinder, delay and defraud one W. Seibold in the collection of a debt which the defendant, F. M. Kirby owed said Seibold, and that complainants, Raynes and Hodge, participated in said purpose, with full knowledge thereof. It is well understood that conveyances or gifts made to hinder, delay or defraud creditors are operative between the parties when fully consummated and that neither can rescind or defeat them. Glover v. Walker, 107 Ala. 545, 18 So. 251; Williams v. Higgins, 69 Ala. 523.

It is alleged, that this mortgage was given to complainants by defendants for the purpose, known and participated in by complainants to hinder, delay and defraud one Seibold, a creditor of defendants. If such were the case, a court of equity might not lend its aid to complainants to disturb the acquired rights of either at the instance of the other--both being in pari delicto. Hill v. Freeman, 73 Ala. 200 49 Am. Rep. 48; Clark v. Colbert, 67 Ala....