Van Ingen v. Duffin

• Decision Date: 14 January 1909
• Citation: 48 So. 507,158 Ala. 318
• Parties: VAN INGEN v. DUFFIN ET AL.
• Court: Alabama Supreme Court

48 So. 507

158 Ala. 318

VAN INGEN v. DUFFIN ET AL.

Supreme Court of Alabama

January 14, 1909

Rehearing Denied Feb. 5, 1909.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Edward H. Van Ingen against P.J. Duffin and others. From a decree for defendants, plaintiff appeals. Affirmed.

Tomlinson & McCullough and C. E. Elder, for appellant.

Arthur L. Brown, for appellees.

SIMPSON J.

The bill in this case was filed by the appellant against the appellees, and seeks to set aside certain conveyances of lands executed to said defendant Elizabeth Duffin respectively, dated September 25, 1891, April 8, 1896, March 1, 1898, August 25, 1898, and May 20, 1898, and to subject the property therein conveyed to a debt due the complainant January 12, 1889, and reduced to judgment on February 29 1892, claiming that said lands so conveyed to said Elizabeth Duffin were paid for by her husband, said defendant P.J Duffin. A demurrer was interposed to said bill, setting up the statute of limitations of 10 years, and the staleness of the demand; also additional demurrers, that the bill is without equity, and to the ninth section because it does not show any effort to discover the fraud, and mere ignorance will not excuse him; also, that no fraudulent concealment of facts is shown.

It is settled by the decisions of this state that the statute of limitations may be set up in equity by demurrer where the bill shows that the cause of action stated in the bill is prima facie within the bar of the statute of limitations or offensive to the rules which courts of equity adopt and for the discouragement of stale demands. Lovelace v. Hutchinson, 106 Ala. 418, 424, 17 So. 623.

Appellant insists that it is not apparent on the face of the bill in this case that the cause of action is prima facie within the bar of the statute, because the bill does not allege that the defendant Elizabeth Duffin is and has been for the time required in the adverse possession of the lands in question. It is not a question of adverse possession. A bill to set aside a fraudulent conveyance is a suit for the recovery of land and governed by the statute of limitations. Washington, Adm'r, v. Norwood, 128 Ala. 383, 30 So. 405. The statute provides that actions for the recovery of lands must be commenced within ten years "after the cause of action has accrued." Code 1907, §§ 4832, 4834, par. 2. The plaintiff's claim was due and payable before the execution of any of these conveyances, and consequently his "cause of action"--to move against said conveyances--accrued at the time the conveyances were made, the latest one of them being May 20, 1898, and the bill in this case was filed September 25, 1908.

The case of Washington, Adm'r, v. Norwood, supra, does not conflict with this conclusion. On the contrary, the point decided in that case is that, where a party was surety on a bond, his "cause of action" did not accrue until the breach of the bond, and, notwithstanding the adverse possession of the land, the statute of limitations did not commence to run against him until by the breach of the bond his...