Martin & Pulsifer v. J.H. McDaniel & Son

• Decision Date: 24 November 1910
• Citation: 53 So. 790,170 Ala. 270
• Court: Alabama Supreme Court
• Parties: MARTIN & PULSIFER ET AL. v. J. H. MCDANIEL & SON.

53 So. 790

170 Ala. 270

MARTIN & PULSIFER ET AL. v. J. H. MCDANIEL & SON.

Supreme Court of Alabama

November 24, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from Chancery Court, Autauga County; W. W. Pearson Chancellor.

Action on a creditors' bill by J. H. McDaniel & Son against Martin & Pulsifer and others. Judgment for plaintiffs, and defendants appeal. Reversed and rendered.

C. E O. Timmerman and Gunter & Gunter, for appellants.

John V Smith, for appellees.

EVANS J.

This is the case of a creditors' bill, filed by J. H. McDaniel and G. E. McDaniel, doing business as McDaniel & Son, against J. W. Martin and F. E. Pulsifer, doing business as Martin & Pulsifer, and J. W. Martin and F. E. Pulsifer personally, and Clark H. Pulsifer, Grant Pulsifer, Guy Pulsifer, Jack Pulsifer, and Ardell Pulsifer, seeking to have a conveyance of real estate from F. E. Pulsifer to his four brothers and sister, above named, declared void as a fraud on said complainants as creditors, and to have the property conveyed sold to meet judgments held by McDaniel & Son against the firm of Martin & Pulsifer and J. W. Martin and F. E. Pulsifer individually. Upon a hearing on the pleadings and proof, the judge of the lower court decreed the relief prayed for, and from this decree the respondents prosecute this appeal.

From the pleadings and proof it appears that in the fall of 1906 the respondents J. W. Martin and F. E. Pulsifer formed a partnership for the sale and installation of waterworks systems for country and suburban homes, and bought considerable machinery from the complainants, McDaniel & Son. Martin was the business head of the firm, managed the money affairs, and had charge of the general business. Pulsifer was the practical man and installed the machinery, being absent from home for long periods for that purpose. In the fall of 1907, McDaniel & Son began pressing Martin & Pulsifer, through Martin, the head and business manager of the firm, for a settlement of their account; and finally, on November 2, 1907, Martin executed in the name of the firm, and for the firm of Martin & Pulsifer, and delivered the same to McDaniel & Son, three promissory notes in full settlement of the account. These notes were for the following amounts, payable as follows: $324.85 due 1st of April, 1908; $519 due 1st of June, 1908; $519 due 1st of August, 1908. These notes were unpaid when due, except for small credits. McDaniel & Son sued thereon in the city court of Montgomery, and on the 5th of October, 1908, after the filing of their bill in this case, obtained judgment thereon against the firm of Martin & Pulsifer and J. W. Martin and F. E. Pulsifer individually, amounting to $1,487.47.

On the 23d day of April, 1908, respondent F. E. Pulsifer executed a deed conveying his one-sixth undivided interest in certain lands to his brothers and sister, the other respondents to the bill, for the consideration of $2,500 cash in hand paid. We conclude from the evidence that these brothers and sister knew that McDaniel & Son claimed that Martin and Pulsifer owed them in some amount at the time the $2,500 was paid and the deed executed and delivered, and that the consideration was in fact paid. There was an incumbrance on the land when this interest was sold, and F. E. Pulsifer paid back to his grantees $500 of the money to discharge the amount of the debt which his share that he had sold them was liable for as between the said Pulsifers. There is no evidence tending to show that the said F. E. Pulsifer was insolvent or in failing circumstances; nor is there any evidence tending to show that he was converting his property subject to execution and sale, into cash, so as to put it out of the reach of creditors. The burden of proving these matters, if true, was upon complainants; and, they having failed to make any attempt to adduce such proof, we must conclude, for the purposes of this decision, that F. E. Pulsifer was entirely solvent and had ample property easily subject to execution and sale to satisfy all his debts in the event F. E. Pulsifer were found liable therefor, and that his sale of this particular property did not in any way hinder, delay, or defraud the complainants.

It is true that in this transaction the burden is upon the respondents to show that a bona fide valuable consideration was paid; but, when this duty was performed, the burden of showing that the sale was made by F. E. Pulsifer with intent to hinder, delay, or defraud his creditors, and that this intent was participated in by the grantees, rested upon...