McKee v. West
| Decision Date | 01 December 1904 |
| Parties | MCKEE v. WEST. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Marengo County; Thos. H. Smith Chancellor.
Bill by W. F. West against Mattie Langford and others. From a decree overruling the plea of defendant Hilton McKee, he appeals. Reversed.
The object of the bill was to set aside a deed made by M. J Williams, deceased, to her two daughters, Mattie Langford and Emma Williams and to subordinate to the rights of appellee as a judgment creditor of the said M. J. Williams, a mortgage executed by the said daughters to McKee. McKee filed a plea setting up the defense of bona fide purchaser for value which alleged the following facts: That on the 28th day of May, 1902, the respondents Mattie Langford and Emma Williams were in the actual or constructive possession of the lands described in the bill, and were seised, or claimed to be seised in the transaction with this respondent, with the legal title to said lands; that on said date he made a loan of money to the said Mattie Langford and Emma Williams, and that contemporaneously therewith he took from them a mortgage to secure the repayment of said sum of money and the interest thereon; that before making said loan he required an examination of the records in the office of the judge of probate of Marengo county by an attorney, who reported that the title to said lands was in the said Mattie Langford and Emma Williams; that, relying on these facts, he made the loan and took the mortgage to secure the same; that at the time he made such loan and took said mortgage the execution issued out of the circuit court of Perry county on the judgment against M. J. Williams in favor of the complainant had not been received by the sheriff of Marengo county; and that he had no notice of the complainant's equity, and knew of no fact calculated to put him on inquiry either at or before the time he parted with the money loaned, or at or before the time he took the mortgage on the said lands to secure the said loan. The cause was submitted to the chancellor on exceptions to the plea, and a decree was rendered overruling the plea.
William Cunninghame, for appellant.
McDaniel & Powell and Wm. H. Tayloe, for appellee.
The bill in this case is filed by a creditor, and seeks to have a certain deed executed by the debtor, and a certain mortgage executed by the grantees of the debtor, set aside as fraudulent. The bill charges that Mrs. M. J. Williams, being at the time indebted to the complainant, made a voluntary conveyance of the lands described, to her two daughters, Mrs. Mattie Langford and Emma Williams, the consideration of love and affection being expressed on its face, and that said grantees then conveyed said lands by mortgage to the respondent McKee. Actual fraud is not charged on McKee, nor is it pretended that he had knowledge when he took his mortgage of any indebtedness existing from Mrs. M. J. Williams to the complainant when she executed the deed of gift to her daughters. The respondent, by special pleas, set up the defense of bona fide purchaser for value, without notice of complainant's equity. The cause was submitted upon the sufficiency of the pleas, and a decree was rendered holding the pleas insufficient, and from this decree the present appeal is prosecuted.
The setting down of the pleas for hearing upon their sufficiency was an admission of the facts averred in them. Ency. Pl. & Pr. vol. 16, p. 620. The averments of facts necessary to be stated in setting up the defense of a bona fide purchaser were sufficiently pleaded, within the rule heretofore laid down by this court in the following named cases: Wood v. Holley Mfg. Co., 100 Ala. 350, 13 So. 948, 46 Am. St. Rep. 56; Gresham v. Ware, 79 Ala. 192; May v. Wilkinson, 76 Ala. 543; Hooper v. Strahan, 71 Ala. 75; Craft v. Russell, 67 Ala. 9.
The theory of the complainant is--and upon this theory his contention is based--that the deed from Mrs. Williams to her two daughters, being a voluntary conveyance, was per se fraudulent and void as to existing creditors, and that a subsequent conveyance by them to one with notice of the fraudulent character of the first...
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