Montgomery v. Hammond, 7 Div. 213.

• Decision Date: 08 March 1934
• Docket Number: 7 Div. 213.
• Citation: 228 Ala. 449,153 So. 654
• Parties: MONTGOMERY, Superintendent of Banks, v. HAMMOND et al.
• Court: Alabama Supreme Court

153 So. 654

228 Ala. 449

MONTGOMERY, Superintendent of Banks, v. HAMMOND et al.

7 Div. 213.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Clay County; W. B. Merrill, Judge.

Creditors' bill by the Farmers' & Merchants' Bank (revived in the name of H. H. Montgomery, as Superintendent of Banks, in charge of liquidating said bank) against Ida Hammond and others. From a decree dismissing the bill, complainant appeals.

Affirmed.

Walter S. Smith, of Birmingham (Riddle & Riddle, of Talladega, of counsel), for appellant.

Pruet &amp Glass, of Ashland, for appellees.

BOULDIN Justice.

The bill was filed by a judgment creditor to subject real estate alleged to have been fraudulently conveyed by the debtor.

The trial court, upon consideration of the evidence, taken in part orally before him, held complainant not entitled to relief, and dismissed the bill.

T. G Hammond, owner of 440 acres of farm and wooded lands, had five sons. He became indebted for money borrowed from the Farmers' & Merchants' Bank of Goodwater to set up his youngest son in a mercantile business. Notes given December 1914, maturing December, 1915, were not paid, and judgment was recovered thereon for more than $4,000 in June, 1916. A certificate of the judgment was duly registered in the office of the judge of probate. On November 17, 1915, a few weeks before the debt was due, the debtor executed four deeds, one to each of his four older sons, three of them conveying 80 acres each, and the fourth 40 acres, reducing his remaining lands, his homestead, to 160 acres, not exceeding $2,000 in value.

The deeds recited a consideration of $640 for each of the 80-acre tracts, and $320 consideration for the 40-acre tract, cash in hand paid, etc.

The bill charges the several recited considerations were never paid by the grantees nor either of them; that the transaction was a fraudulent one for the purpose of shielding the property from complainant's demand.

Without question, treating the bill as charging voluntary conveyances, upon proof of the pre-existing debt, a prima facie case for complainant was made out.

The burden was on the several grantees to show a valuable consideration paid for their respective lands.

A careful consideration of the evidence supports the finding of the trial judge on this vital issue in the case.

It is not questioned that the recited consideration for the several conveyances was the fair value of the property.

Only a summary of the evidence on the question of payment vel non need be stated.

The evidence indicates the father conceived the idea of dividing up his lands among his sons, other than the one with whom he was indebted, some time prior to making the deeds. Indeed, it appears one son had built him a home on one parcel many years before, with a view to acquiring title by purchase or gift.

Several months or a year before the deeds were made, the evidence is the father advised these sons that he needed some money, wanted to cut down the farm to be looked after in his old age, and requested them severally to buy a parcel, and was promised they would do so the coming fall or as soon as they could get the money. It appears by the weight of evidence that three of these sons then lived in another county, Talladega. The father, on November 17, 1915, had all the deeds drawn in the absence of the grantees, and proceeded to call upon the sons and deliver them severally.

J. A. Hammond, one of the sons in Talladega county, produces a check, $640, drawn by him on the Merchants' & Planters' Bank, Sylacauga, payable to T. G. Hammond, the grantor, dated November 22, 1915, and duly indorsed and paid by the bank on the same day.

Likewise, J. W. P. Hammond, grantee of the 40-acre tract, produces a check, $320, drawn by him on the Sylacauga bank, payable to the grantor, dated November 23, 1915, and duly indorsed and paid by the bank on the same date.

No substantial evidence appears to warrant any conclusion other than actual payment for these lands out of moneys of the drawers on deposit in the bank.

As to payment by the other two grantees, proof rests mainly on parol evidence, but positive in character, and we cannot say really impeached.

In studying this testimony we must take note of the long delays tending to failure of memory as to details.

This bill was filed, May 2, 1917, and proof was taken in 1931 and 1932, sixteen and seventeen years after the transactions involved.

The grantor, T. G. Hammond, 76 years of age, died six weeks after the bill was filed.

In 1918 or 1919 the complainant bank failed and was taken in hand by the state banking department.

We do not seek to place the blame, nor to reflect upon any individual formerly or presently connected with the case but, for future good, we feel constrained to say such unseemly delays involving trust assets being administered by the state are a reproach to the administration of justice. The...