McClarin v. Anderson

• Decision Date: 21 June 1894
• Parties: MCCLARIN v. ANDERSON.
• Court: Alabama Supreme Court

16 So. 639

104 Ala. 201

MCCLARIN v. ANDERSON.

Supreme Court of Alabama

June 21, 1894

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Bill by Thomas Anderson against Mary J. McClarin. From a decree overruling demurrers to the bill and a motion to dismiss defendant appeals. Affirmed.

The bill in this case was filed on September 9, 1893, by the appellee, Thomas Anderson, against the appellant, Mary J McClarin, and sought to have a certain conveyance of land executed by Robert McClarin and Mary J. McClarin to James Robertson, and a deed conveying the same lands from James Robertson and wife to Mary J. McClarin, set aside and annulled as fraudulent, and the property conveyed therein sold for the payment of a judgment recovered by Thomas Anderson against Robert McClarin. The bill and its exhibits thereto showed, that on May 13, 1875, Thomas Anderson, in an action against Robert McClarin to recover damages for malicious prosecution, recovered judgment against the latter in the sum of $500 and costs; that on June 7th, following execution was issued on said judgment and returned, "No property found." On August 29, 1881, another execution was issued on said judgment, which was returned for an alias. On February 6, 1882, another execution was issued upon the same judgment, and was levied on that day upon certain property of the defendant, Robert McClarin, which was described in the sheriff's return as follows: "All and singular that certain lot of land lying and being in square No. 5 and known as 'Lot No. 3' and bounded as follows, on the west by street No. four (4), on the east by property belonging to Dr. Jesse Carter, on south by property formerly belonging to Mrs. Ethridge, and on the north by property belonging to estate of Clark, having a front of fifty-three feet on street No. four (4), with a depth of seventy feet, more or less, and being in the Lyon & Gordon tract according to Dade's survey thereof. (2) Also that certain lot of land commencing at the southeast corner or intersection of Stone street, now Davis avenue, and Third street in the city of Mobile, and running thence eastwardly along the south line of Stone street thirty feet (30) to a point, thence southwardly ninety-five feet to a point, thence westwardly thirty (30) feet to the east line of Third street and thence northwardly along the line of Third street to the place of beginning. (3) Also all and singular that certain lot of land in the city of Mobile, state of Alabama, described as follows: Said lot being situated on the southwest corner of Davis avenue (formerly Stone street) and Hospital street, running west from said corner fifty-six (56) feet front on Davis avenue, more or less, thence running south one hundred feet (100), more or less, thence running east (56) fifty-six feet, more or less, thence running north on Hospital street one hundred (100) feet, more or less, to the place of beginning."

The sheriff gave notice in writing of the levy to the defendant. On June 16, 1885, the defendant in execution made his claim of exemptions as a homestead to certain portions of the land levied upon, which were described in the claim as follows: "All those certain lots of land in square No. 4 (Dunn's purchase) described as follows, viz.: Commencing at the southeast corner or intersection of Davis avenue and street No. 3, thence southwardly along the east line of street No. 3, one hundred and five (105) feet, thence eastwardly parallel to Davis avenue, one hundred and twelve feet, six inches (112' 6"'), thence southwardly and parallel to street No. 3 fifty-one feet and three inches (51' 3"'), thence northwardly and parallel to street No. 3, one hundred and fifty-six feet, three inches (156' 3"') to Davis avenue, thence westwardly along the south line of Davis avenue, one hundred and sixty-eight feet, nine inches (168' 9"') to the place of beginning, bounded on the north by Davis avenue, on the west by street No. 3, on the east by lot No. 2, and on the south by lots 8, 7 and 6." This claim was filed with the sheriff on July 3, 1885, and on that day the sheriff made his return of the execution. The sheriff's return fails to show that he gave the plaintiff notice of the defendant's claim of homestead exemption. On July 31, 1885, without noticing said claim, the clerk issued a writ of venditioni exponas ordering the sale of the lands which had been levied upon by the sheriff under the execution, and these lands were sold. At said sale Thomas Anderson became the purchaser, and received a deed for the lands. On November 6, 1885, Robert McClarin obtained a rule to show cause why the sale of the lands which had been levied upon by the sheriff under the execution should not be set aside, upon the grounds, among others, that the sheriff and clerk had failed to take notice of the homestead exemption, or to give notice of said claim. Upon the hearing of the motion to set aside the sale of the lands under the execution, the court overruled the motion, and refused the rule nisi. On the appeal to this court from said judgment, the judgment was reversed, and a judgment was here rendered setting aside and vacating the sale and conveyance of the lands, and the cause was remanded that the plaintiff might give written notice of the claim of homestead exemption, which claim the plaintiff should be permitted to contest as he might be advised. 8 So. 188. The certificate of reversal was filed on December 13, 1886. On April 7, 1887, Thomas Anderson, the plaintiff, filed a contest of the claim of homestead exemptions, and on the next day McClarin demurred to the said contest because it showed that the claim of homestead exemption was filed and Anderson had notice thereof more than 10 days before he filed his contest. When the cause came on for trial, it was submitted on plaintiff's motion for an issue, and on defendant's demurrer to the contest. The demurrer was sustained and the motion refused. The court refused to try the said contest on its merits, because it had not been filed in the time required by law, and this order of the court was made on April 18, 1887. On April 19, 1887, another execution was issued. On May 19, 1887, this last execution was levied on the same lands as had been formerly levied upon. Robert McClarin again filed, on May 25, 1887, a claim of homestead exemption to a part of the lands thus levied upon, which were the same as those included in his former claim. Anderson thereupon, on May 30, 1887, filed with the sheriff a contest of this last claim of homestead exemption by McClarin. Upon this contest coming on to be heard, the court dismissed the contest on the ground that said levy was improperly made and said contest improperly instituted, because McClarin had filed his claim of exemption in the office of the judge of probate prior to the issuance of said execution, but no affidavit of contest had been made of said claim.

The deeds which were sought to be set aside and annulled as fraudulent, were one executed on February 4, 1887, by McClarin and wife, Mary J. McClarin, and conveyed the lands levied upon under each of the executions above mentioned, to James Robertson. The other was executed on May 21, 1887, by James Robertson and wife and conveyed identically the same lands to Mary J. McClarin. The consideration in each deed was $900, and the bill averred that the consideration recited in each of said deeds was merely simulated, and that there was in fact, no consideration paid by either of the grantees; and that at the time the deeds were executed, it was the understanding and agreement between the parties thereto, that they were made upon simulated considerations, "for the purpose of placing said property beyond the reach of the creditors of said Robert McClarin, and particularly to prevent your orator from subjecting said property to the payment and satisfaction of his said judgment against said Robert McClarin." Robert McClarin died before the bill was filed, and after the execution of said deeds. The bill averred that Robert McClarin left no property at the time of his death, but died wholly insolvent and intestate; that no administration has been had upon his estate, as there was no property in his name, at the time of his...