Orr v. Echols

• Decision Date: 29 October 1898
• Citation: 24 So. 357,119 Ala. 340
• Parties: ORR ET AL. v. ECHOLS ET AL.
• Court: Alabama Supreme Court

24 So. 357

119 Ala. 340

ORR ET AL. v. ECHOLS ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, Madison county; W. H. Simpson Chancellor.

Bill to set aside a deed by one Orr and others against A. Ewing Echols and others. From a decree for defendants, the complainants appeal. Affirmed.

The bill in this case was filed by the appellants, Orr, Scroggins & Humes on the 8th December, 1893, against the appellees Echols et al.; its object being to have set aside two certain deeds made by the defendant A. Ewing Echols to his wife and co-defendant, Daisy Echols, made, the one, on the 1st, and the other on the 10th June, 1893. The bill alleges that the firm of Echols & Sheffey, of which defendant, A. Ewing Echols was a member, and for the debts of which he was individually liable, was indebted to complainants in the sum of $845.16 that $173.41 of that indebtedness was contracted in March 1893, prior to the execution of said deeds in June following and the remainder,-$671.45,-was contracted after said deeds were filed for record; that said firm and each individual member thereof had no property subject to execution at law; that the real estate conveyed was worth $20,000; that said A. Ewing Echols intended, when said deeds were executed, that this said firm should incur the indebtedness for the payment of which the property conveyed was sought by the bill to be condemned; that complainants had no notice of the execution of said deeds when said indebtedness was contracted with them; and that said deeds "were executed by the said Echols, for the purpose of hindering, delaying and defrauding the creditors of said firm of Echols & Sheffey."

A demurrer was interposed by defendants below to the bill which was overruled, and on appeal to this court, the decree of the lower court was affirmed. Echols v. Orr, 106 Ala. 237, 17 So. 677. After this, on return of the cause to the court below, the appellees filed answers, in which the allegations of fraud in the bill were specifically denied, and Daisy Echols made her answer a cross bill under the statute. The said deeds each purported to have been made on the consideration of "love and affection, and the sum of one dollar." As to this recital the cross bill alleged, that "said recitation [of a consideration] was placed therein by said A. Ewing Echols, her husband, by mistake, and without the knowledge and consent of this respondent. Said deeds were both drawn up and prepared by A. Ewing Echols alone, without the aid or assistance of a lawyer or legal advice, and neither the said A. Ewing Echols nor respondent was a lawyer, or acquainted with the forms of law or of conveyances, and both he and respondent were entirely ignorant of the legal construction of such instruments and the recitations therein. Neither of said deeds recites the true consideration upon which they were made. The true consideration thereof was the part payment of a past-due indebtedness of over $3,386, which was justly owing to respondent by said A. Ewing Echols, formerly loaned to him by her, which loan was evidenced by two promissory notes of Echols to respondent, one bearing date June 15, 1888, for $2,750, and the other for $336, dated August 1, 1888, both payable to respondent on demand, and both bearing 8 per cent. interest from date. Both of said notes are now in respondent's possession, having never been paid in full, and on said note for $2,750, said A. Ewing Echols is given credit for the value of said land in Alabama and Mississippi so conveyed to respondent, as well as for $200 paid thereon on March 22, 1889, and $631 paid thereon about 15th Sept. 1889. *** Said money was loaned by respondent to her said husband, and his said notes executed to her therefor long prior to the time when he embarked in business as a member of the firm of Echols & Sheffey, and long prior to the creation of any debts by them to complainants. Said indebtedness was honest, bona fide, just true and correct, and the lands and interest in lands conveyed to her by said deeds were not worth the amount due on said note, and said lands and interest thereon, together with certain other lands in Mississippi (which was conveyed to respondent by separate deed) were accepted by her under said conveyances solely for the honest purpose of obtaining payment of said debt so far as said property was sufficient therefor, and solely in consideration thereof, as was mutually understood at the time by the...