Minchener v. Henderson

• Decision Date: 06 February 1913
• Parties: MINCHENER v. HENDERSON.
• Court: Alabama Supreme Court

61 So. 246

181 Ala. 115

MINCHENER v. HENDERSON.

Supreme Court of Alabama

February 6, 1913

Appeal from Chancery Court, Pike County; L.D. Gardner, Chancellor.

Bill by Rena Minchener against Fox Henderson. From a decree for defendant, plaintiff appeals. Affirmed.

J.M Chilton, of Montgomery, and W.E. Griffin, of Troy, for appellant.

John H Wilkerson and Foster, Samford & Carroll, all of Troy, for appellee.

McCLELLAN J.

Rena Minchener, the wife of J.R. Minchener, filed her bill against Fox Henderson, praying the cancellation of a mortgage, for $2,130.62, executed, on December 4, 1907, by complainant along with her husband to secure the payment of the husband's note for that amount to Henderson. The mortgage was upon a certain lot in Troy, Ala., which had been conveyed, as a gift, by J.R. Minchener's father to him on August 16, 1906. On May 21, 1907, J.R. Minchener made a voluntary conveyance of this lot (less a part sold to Wood) to his wife. It is upon this conveyance that complainant rests her title to the lot described in her bill, and out of which she would derive her right to have the mortgage canceled as a security upon her property for her husband's debt. Henderson asserts, among other things, in his answer and cross-bill, that the voluntary conveyance to complainant was in fraud of his rights as a then (May 21 1907) existing creditor of J.R. Minchener, and prays in his cross-bill that the voluntary conveyance be annulled in accordance with the practice in such cases prevailing. The chancellor declined to grant the foreclosure of the mortgage as also sought by the cross-bill, upon the notion that the mortgage debt had not matured when the cross-bill was filed. Hence this matter of foreclosure is not the subject of consideration on this appeal.

Whether Henderson was, at the time stated, an existing creditor of J.R. Minchener, depends upon whether, previous to that time viz., about January, 1907, J.R. Minchener and Henderson had made the agreement to be stated. J.R. Minchener and Fox Henderson were equal partners in a milling and building supply concern, styled, Henderson & Minchener, doing business at Troy. The business was under the management of Minchener. After J.R. Minchener became the owner of the lot as stated, he decided to build a dwelling upon it. Henderson was a man of large means. Minchener appears to have then had little, if anything, besides his share in the business, which the evidence shows without dispute was heavily indebted, and the lot, the gift of his father. The cross-complainant contends that he and Minchener discussed Minchener's proposed building, and agreed, about January 1, 1907, that the firm should furnish materials, labor, and money to build the proposed house, Minchener keeping a memorandum account of the items, and when the building was completed the amount thereof should and would be charged on the firm books to Henderson, and then Minchener should and would give Henderson a mortgage on the lot to secure the payment to Henderson of the sum so charged to him. It is denied that such agreement was ever made, though it is admitted that a mortgage was executed, as stated. It is not denied that values, furnished by the firm assets, to the amount expressed in the note and mortgage to Henderson, were applied to the construction of the dwelling--to the improvement of the lot in question. No sound reason, legal or equitable, has been suggested, and none occurs to this court, why both of the partners in a firm may not, as between themselves, appropriate firm assets to the advantage of one of them, and agree that, upon the other partner's assumption to reimburse the firm the value of the assets so delivered, the partner to whose...