Nance v. Nance

• Decision Date: 18 July 1888
• Citation: 4 So. 699,84 Ala. 375
• Parties: NANCE ET AL. v. NANCE ET AL.
• Court: Alabama Supreme Court

4 So. 699

84 Ala. 375

NANCE ET AL. v. NANCE ET AL.

Supreme Court of Alabama

July 18, 1888

Appeal from chancery court, Talladega county; S. K. MCSPADDEN Chancellor.

Action by J. W. Nance and others, judgment creditors of W. H. Nance against said W. H. Nance and others, to set aside a conveyance made by the latter to his wife. Judgment for defendants, and plaintiffs appeal.

John T. Heflin, for appellants.

Bishop & Whitson and Watts & Son, for appellees.

CLOPTON J.

The defendants were married in February, 1867. Prior to the solemnization of the marriage, an agreement was entered into between them, by which W. H. Nance agreed, in consideration of the marriage, to settle on the intended wife, by good and sufficient conveyances, to be executed on or before the 1st day of January thereafter, certain specified real estate situate in the town of Talladega. The conveyances were executed as provided by the agreement. Appellants, who are judgment creditors of Nance, and who were creditors at the time of the execution of the agreement and of the marriage seek by the bill to condemn the real estate to the satisfaction of their judgments, on the ground that the agreement and conveyances are fraudulent as to his creditors. Though fraud may be intended by the husband, an antenuptial settlement is not void as to his creditors if the wife has no notice of his fraudulent intent; both must concur, or the wife's right will not be affected thereby. In Prewit v. Wilson, 103 U.S. 22, the husband was the owner of a large amount of property, consisting chiefly of lands, which he conveyed to his wife in consideration of marriage. He was insolvent, his property being worth about $50,000 and his debts exceeding $70,000. Though the wife knew that he was embarrassed and in debt, there was no evidence that she was aware of the amount of his property, or the extent of his debts, or that he had any purpose except to induce her to consent to the marriage. It is said: "There is an entire absence of elements which vitiate even an ordinary transaction of sale, where, if set aside, the parties may be placed in their former positions. And an antenuptial settlement, though made with a fraudulent design by the settlor, should not be annulled without the clearest proof of the wife's participation in the intended fraud, for upon its annulment there can follow no dissolution of the marriage, which was the consideration of the settlement." It may be that, at the time of the agreement, Nance was in fact insolvent; but, if so, there is no evidence tending to show that he himself was aware of it at that time. It was subsequently revealed by the development of the condition of the mercantile business in which he was engaged. The wife was not informed, and had no reason to believe or suspect, so far as appears from the evidence, that he was in debt. Both parties testify, and there is nothing which casts a doubt on the truthfulness of their statements, that no fraud was intended, and the sole consideration of the agreement was the marriage as expressed therein; the wife requiring a settlement to be made on her as a wise and prudent provision against future misfortune or adversity. The evidence wholly fails to show that she was prompted by a fraudulent intent, or that she participated in any such purpose on the part of her...