Moore v. Altom

• Decision Date: 06 April 1916
• Docket Number: 8 Div. 891
• Citation: 71 So. 681,196 Ala. 158
• Parties: MOORE et al. v. ALTOM.
• Court: Alabama Supreme Court

71 So. 681

196 Ala. 158

MOORE et al. v. ALTOM.

8 Div. 891

Supreme Court of Alabama

April 6, 1916

Appeal from Chancery Court, Jackson County; James E. Horton, Jr. Chancellor.

Bill by J.B. Altom against D.D. Moore and others, to declare a deed fraudulent and void as to creditors. From the decree defendants appeal. Affirmed.

Lawrence E. Brown, of Scottsboro, for appellants.

Bouldin & Wimberly, of Scottsboro, for appellee.

SAYRE J.

After the decree overruling the general demurrer had been affirmed in this court (Moore v. Altom, 68 So. 326) complainant (appellee) eliminated from his bill that alternative aspect of it which sought to enforce a vendor's lien, and further amended by adding to the bill in its other aspect, seeking to set aside a conveyance as fraudulent, an averment to the effect that the grantee defendant Sherwood was a party to the fraud.

Smith had no interest in the lands in question; he took nothing by the conveyance complained of. He joined Moore in the execution of the note that made complainant a creditor; but his liability was several as well as joint. We conceive no reason why he should be made a party to complainant's bill to collect his debt from Moore by having the court decree Sherwood a trustee in invitum of the land conveyed to him in fraud of complainant's right as a creditor.

As between the parties to it the conveyance in controversy cannot be annulled. After the complainant shall have been satisfied, the remainder of any fund to be produced by the decree, if the decree results in a sale, will go to the fraudulent grantee or those claiming under him. Davis v Stovall, 185 Ala. 173, 64 So. 586. It was not necessary to make Mrs. Moore, who joined her husband in the conveyance but who is charged with no fraud, a party defendant to the bill. Williams v. Spragins, 102 Ala. 424, 15 So. 247.

Appellant insists that no default in the payment of the note is shown for the reason that it was payable at the Tennessee Valley Bank, and the bill contains no averment that the note was presented for payment at the time and place when and where it was made payable, nor any denial that funds awaited the note at the bank. This is defensive matter. If money for its payment awaited the complainant at the time and place appointed for the payment of the note, that was the equivalent of a tender, but does not deprive complainant of his right to proceed in this bill. If complainant was...