McCollum v. Burton, 6 Div. 505.

• Citation: 220 Ala. 629,127 So. 224
• Decision Date: 27 March 1930
• Docket Number: 6 Div. 505.
• Parties: MCCOLLUM v. BURTON ET AL.
• Court: Supreme Court of Alabama

127 So. 224

220 Ala. 629

MCCOLLUM v. BURTON ET AL.

6 Div. 505.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Creditor's bill by M. B. McCollum against John F. Burton, Velma Burton H. B. Brasher, H. C. Brasher and S. F. Brasher. From a decree dismissing the bill, complainant appeals.

Affirmed.

J. J Ray and R. A. Cooner, both of Jasper, for appellant.

Sowell & Gunn, of Jasper, for appellee.

GARDNER J.

Complainant on October 18, 1926, recovered a judgment in a tort action against defendant John F. Burton. He seeks by the bill in this case to set aside as fraudulent and void a deed to certain real estate executed to defendants, H. B., H. C., and S. F. Brasher bearing date October 25, 1926, as in fraud of his rights as creditor of said Burton.

The "Brashers" (to so designate for convenience these three defendants) insist by their pleading and proof that they were bona fide purchasers for value, and invoke the protection due to innocent purchasers. The chancellor was persuaded of the correctness of their position, and upon final hearing dismissed the bill. Complainant appeals.

We conclude the decree is correct.

Complainant's suit against Burton was pending at the time the Brashers purchased, but the evidence is without dispute that they had no actual knowledge or notice thereof. No specific property was sought in that action-merely the recovery of a money judgment, and the doctrine of lis pendens had no application. Moragne v. Doe, etc., 143 Ala. 459, 39 So. 161, 111 Am. St. Rep. 52, 5 Ann. Cas. 331; Thompson v Johnson, 201 Ala. 315, 78 So. 91; § 6878, Code 1923.

The purchase price paid by the Brashers was $600, and, according to the great preponderance of the evidence, this was full value therefor. Under the circumstances here disclosed, the burden rested upon complainant to show that these purchasers for a valuable and substantial consideration had notice of an intent by their grantor to hinder, delay, or defraud his creditors. Boutwell v. Spurlin Mercantile Co., 203 Ala. 482, 83 So. 481; London v. Anderson Brass Works, 197 Ala. 16, 72 So. 359.

These purchasers insist they had no knowledge of any such intent on the part of the grantor, and no notice of any facts which would have lead to such knowledge, and we find no proof to the contrary. Complainant must therefore rely upon constructive notice. We have shown the doctrine of lis pendens is without application, and it appears that the certificate of judgment was not recorded until October 27, 1926, two days after the purchase. So far, therefore, as the suit and the judgment are concerned, there could be no constructive notice.

It appears that while complainant's suit at law was pending against said John F. Burton, and on August 15, 1925, said Burton conveyed the property here involved to his wife Velma upon a recited consideration of $1, and it is insisted said conveyance was voluntary and, as such, void against complainant, an existing creditor. We recognize the well-established rule that notice is imputed to a purchaser of infirmities and incumbrances appearing in his chain of title. Johnson v. Thweatt, 18 Ala. 741; Burnwell Coal Co. v. Setzer, 203 Ala. 395, 83 So. 139. But manifestly the execution of such conveyance, as above noted, does not injuriously affect the rights of the Brashers, unless the recitals of the deed disclosing it was not founded on a valuable consideration suffice to put them on inquiry as to whether or not it was fraudulent. Such a disclosure is not sufficient for this purpose. The legal presumption prevailed that the conveyance was valid and not fraudulent, and they had a right to act upon such presumption until some other fact was brought to their mind that it was fraudulent. McKee v. West, 141 Ala. 531, 37 So. 740, 109 Am. St. Rep. 54; Merchants' Bank v. Parrish, 214 Ala. 96, 106 So. 504.

Appellant further argues that a grantee in a quitclaim deed cannot be an innocent purchaser, a doctrine recognized by the decisions of this court. O'Neal v. Seixas, 85 Ala. 80, 4 So. 745; Rucker v. T. C., I. & R. R. Co., 176 Ala 456, 58 So. 465. But the Brashers do not hold under a quitclaim deed but under a deed containing the usual covenants of warranty to title, and the question is presented, therefore, whether or not the above-noted doctrine shall be extended to them, because their grantors held under a quitclaim title, though they purchased in good faith and for value under a warranty deed. The Supreme Court of the United States in United States v. California Land Company, 148 U.S. 31, 13 S.Ct. 458, 464, 37 L.Ed. 354, in considering this question used the following language...