BRICKELL, C. J.—
The law in this State is settled, that as to existing creditors, a voluntary conveyance by a debtor is by presumption of law, absolutely void, though no fraudulent intent is imputable to donor or donee, and though the donor may have reserved from the conveyance property more than sufficient for the satisfaction of all debts and demands against him.—Miller v. Thompson, 3 Port. 196; Foote v. Cobb, 18 Ala. 585; Gunnard v. Eslava, 20 Ala. 732; Thomas v. De Graffenreid, 17 Ala. 602; Moore v. Spence, 6 Ala. 506; Stiles & Co. v. Lightfoot, 26 Ala. 443; Huggins v. Perrins, 30 Ala. 396.
It is equally well settled, that a creditor within the statute of frauds, (Code of 1876, § 2124,) as to whom a voluntary conveyance is void, is not necessarily one having a demand for money which is due, or running to maturity, or one having an existing cause of action. Whoever has, or may’ have a plaim or demand upon a contract in existence at the time the voluntary conveyance is executed, is a creditor within the meaning of the statute.—Foote v. Cobb, supra. A contingent claim, is as fully protected, as a claim that is certain and absolute. The covenantee of a covenant of general warranty, who is evicted by a title paramount and outstanding at the time the covenant is entered into, is regarded as a creditor, not from the time of eviction, but from the time the covenant was executed; and a subsequent voluntary conveyance, is, as to him, void.—Gunnard v. Eslava, supra.
In the application of the principle that voluntary conveyances, are, as matter of law, conclusively presumed fraudulent and void as to existing creditors, the definition of a voluntary conveyance must be steadily kept in view. It is a conveyance founded merely and exclusively on a good, as distinguished from a valuable consideration, on motives of generosity and affection, rather than on a benefit received by the donor, or detriment, trouble, or prejudice to the donee. If the donor receives a benefit, or the donee suffers detriment, as the consideration of the conveyance, the consideration is [616]*616valuable, not good merely. However inadequate such consideration may be—however trivial the benefit to the one, or the damage to the other, the conveyance is not voluntary. The inadequacy, is a circumstance which with other facts, may impart an actual intent to hinder, delay and defraud the creditors of the grantor, but it does not change the character of the conveyance—does not convert it into a voluntary conveyance.—Bump on Fraud. Con. 262. The intent of the party making it, determines its validity or invalidity, whatever may be its form, or the consideration it recites. If he intends to give, and the donee accepts with knowledge of the intention, the conveyance is voluntary. If he intends to sell, and there is a valuable consideration, the conveyance is not voluntary. The true inquiry therefore is, was the transaction in which the conveyance originates, a gift, or a sale. Van Wych v. Seward, 18 Wend. 386. In this case, a conveyance was made by a father of real estate to his son, requiring the latter to pay his sisters such an amount as the father should decree their portion of his estate. Though the son by accepting the conveyance, became liable to pay the daughters the amount the father should declare, the conveyance was held voluntary. The manifest intent of the donor was to dispose of the lands to and among his children from motives of affection.
After a careful examination of the conveyances made by Freeman, in January, 1859, to Remson, its terms, limitations, and conditions, and a consideration of the cotemporaneous agreement to which it refers, so far as the contents of that agreement are shown by the evidence,—of the relation of the parties, the circumstances surrounding them, when the conveyance was executed, and their subsequent conduct in reference to it, we can discover no substantial ground on which the conveyance can be regarded as a sale, and not as a gift— as founded on a valuable consideration, and not merely and exclusively on generosity and affection. The element of value, which it is supposed entered into the consideration, freeing the conveyance from the character of voluntary, is that it was made in pursuance of a promise by the donor to give the lands to Remson, if the latter would move from his residence in the county of Talladega, and reside on the lands, cultivating them under the cotemporaneous agreement to which reference has already been made.
It is often a matter of great difficulty, to discern the line which separates promises creating legal obligations, from mere gratuitous agreements; Each case depends so much on [617]*617its own peculiar facts and circumstances, that it affords but little aid in determining other cases of differing facts. The promise, or agreement, the relation of the parties, the circumstances surrounding them, and their intent, as it may be deduced from these, must determine the inquiry. If the purpose is to confer on the promisee,, a benefit from affection and generosity the agreement is gratuitous. If the purpose is to obtain a quid pro quo—if there is something to be received, in exchange for which the promise is given, the promise is not gratuitous, but of legal obligation.—Erwin v. Erwin, 25 Ala. 241. In Kirksey v. Kirksey, 8 Ala. 131, a brother-in-law, wrote to the widow of his brother, living sixty miles distant, that if she would come and see him, he would let her have a place to raise her family. SJiortly after, she broke up and removed to the residence of her brbther-inlaw, who for two years furnished her with a comfortable residence, and then required her to give it up. The promise was held gratuitous, though the sister-in-law in consequence of it had sustained the loss and inconvenience of breaking up and moving to the residence of the promissor. In Forward v. Armstead, 12 Ala. 124, a father residing in this State, promised a son residing in North Carolina, to give him a particular plantation in this State, and slaves, if he would remove to and settle upon it. The son was induced by the promise to break up his residence in North Carolina at a loss, and was put to expense and inconvenience in removing to this State. The promise was declared gratuitous, and that the father could not be compelled to perform it specifically. 'The inconvenience and loss the son sustained, was insisted on as furnishing a valuable consideration for the promise. But the court said: “ It seems to us, that the expense. incurred in a removal under such inducements, does not furnish the test whether the engagement is to be considered a contract, instead of a gratuity, because expense, or at least trouble, 'which is equivalent to it, must always be incurred; but as we have before indicated, the test is, whether the thing is to be paid in consideration of the removal, instead of being given from motives of benevolence, kindness, or natural affection.”
The conveyance refers to the cotemporaneous agreement between the donor and the adult, active donee who was free from disability. It is shown that agreement was in writing, •and has been lost. Its terms according to the evidence of -the donor, and one of the donees, -who are the only witnesses .-•speaking of them, were, that Bemson should remain on the [618]*618lands conveyed, and superintend their cultivation, and that of two other plantations, the property of the donor.
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BRICKELL, C. J.—
The law in this State is settled, that as to existing creditors, a voluntary conveyance by a debtor is by presumption of law, absolutely void, though no fraudulent intent is imputable to donor or donee, and though the donor may have reserved from the conveyance property more than sufficient for the satisfaction of all debts and demands against him.—Miller v. Thompson, 3 Port. 196; Foote v. Cobb, 18 Ala. 585; Gunnard v. Eslava, 20 Ala. 732; Thomas v. De Graffenreid, 17 Ala. 602; Moore v. Spence, 6 Ala. 506; Stiles & Co. v. Lightfoot, 26 Ala. 443; Huggins v. Perrins, 30 Ala. 396.
It is equally well settled, that a creditor within the statute of frauds, (Code of 1876, § 2124,) as to whom a voluntary conveyance is void, is not necessarily one having a demand for money which is due, or running to maturity, or one having an existing cause of action. Whoever has, or may’ have a plaim or demand upon a contract in existence at the time the voluntary conveyance is executed, is a creditor within the meaning of the statute.—Foote v. Cobb, supra. A contingent claim, is as fully protected, as a claim that is certain and absolute. The covenantee of a covenant of general warranty, who is evicted by a title paramount and outstanding at the time the covenant is entered into, is regarded as a creditor, not from the time of eviction, but from the time the covenant was executed; and a subsequent voluntary conveyance, is, as to him, void.—Gunnard v. Eslava, supra.
In the application of the principle that voluntary conveyances, are, as matter of law, conclusively presumed fraudulent and void as to existing creditors, the definition of a voluntary conveyance must be steadily kept in view. It is a conveyance founded merely and exclusively on a good, as distinguished from a valuable consideration, on motives of generosity and affection, rather than on a benefit received by the donor, or detriment, trouble, or prejudice to the donee. If the donor receives a benefit, or the donee suffers detriment, as the consideration of the conveyance, the consideration is [616]*616valuable, not good merely. However inadequate such consideration may be—however trivial the benefit to the one, or the damage to the other, the conveyance is not voluntary. The inadequacy, is a circumstance which with other facts, may impart an actual intent to hinder, delay and defraud the creditors of the grantor, but it does not change the character of the conveyance—does not convert it into a voluntary conveyance.—Bump on Fraud. Con. 262. The intent of the party making it, determines its validity or invalidity, whatever may be its form, or the consideration it recites. If he intends to give, and the donee accepts with knowledge of the intention, the conveyance is voluntary. If he intends to sell, and there is a valuable consideration, the conveyance is not voluntary. The true inquiry therefore is, was the transaction in which the conveyance originates, a gift, or a sale. Van Wych v. Seward, 18 Wend. 386. In this case, a conveyance was made by a father of real estate to his son, requiring the latter to pay his sisters such an amount as the father should decree their portion of his estate. Though the son by accepting the conveyance, became liable to pay the daughters the amount the father should declare, the conveyance was held voluntary. The manifest intent of the donor was to dispose of the lands to and among his children from motives of affection.
After a careful examination of the conveyances made by Freeman, in January, 1859, to Remson, its terms, limitations, and conditions, and a consideration of the cotemporaneous agreement to which it refers, so far as the contents of that agreement are shown by the evidence,—of the relation of the parties, the circumstances surrounding them, when the conveyance was executed, and their subsequent conduct in reference to it, we can discover no substantial ground on which the conveyance can be regarded as a sale, and not as a gift— as founded on a valuable consideration, and not merely and exclusively on generosity and affection. The element of value, which it is supposed entered into the consideration, freeing the conveyance from the character of voluntary, is that it was made in pursuance of a promise by the donor to give the lands to Remson, if the latter would move from his residence in the county of Talladega, and reside on the lands, cultivating them under the cotemporaneous agreement to which reference has already been made.
It is often a matter of great difficulty, to discern the line which separates promises creating legal obligations, from mere gratuitous agreements; Each case depends so much on [617]*617its own peculiar facts and circumstances, that it affords but little aid in determining other cases of differing facts. The promise, or agreement, the relation of the parties, the circumstances surrounding them, and their intent, as it may be deduced from these, must determine the inquiry. If the purpose is to confer on the promisee,, a benefit from affection and generosity the agreement is gratuitous. If the purpose is to obtain a quid pro quo—if there is something to be received, in exchange for which the promise is given, the promise is not gratuitous, but of legal obligation.—Erwin v. Erwin, 25 Ala. 241. In Kirksey v. Kirksey, 8 Ala. 131, a brother-in-law, wrote to the widow of his brother, living sixty miles distant, that if she would come and see him, he would let her have a place to raise her family. SJiortly after, she broke up and removed to the residence of her brbther-inlaw, who for two years furnished her with a comfortable residence, and then required her to give it up. The promise was held gratuitous, though the sister-in-law in consequence of it had sustained the loss and inconvenience of breaking up and moving to the residence of the promissor. In Forward v. Armstead, 12 Ala. 124, a father residing in this State, promised a son residing in North Carolina, to give him a particular plantation in this State, and slaves, if he would remove to and settle upon it. The son was induced by the promise to break up his residence in North Carolina at a loss, and was put to expense and inconvenience in removing to this State. The promise was declared gratuitous, and that the father could not be compelled to perform it specifically. 'The inconvenience and loss the son sustained, was insisted on as furnishing a valuable consideration for the promise. But the court said: “ It seems to us, that the expense. incurred in a removal under such inducements, does not furnish the test whether the engagement is to be considered a contract, instead of a gratuity, because expense, or at least trouble, 'which is equivalent to it, must always be incurred; but as we have before indicated, the test is, whether the thing is to be paid in consideration of the removal, instead of being given from motives of benevolence, kindness, or natural affection.”
The conveyance refers to the cotemporaneous agreement between the donor and the adult, active donee who was free from disability. It is shown that agreement was in writing, •and has been lost. Its terms according to the evidence of -the donor, and one of the donees, -who are the only witnesses .-•speaking of them, were, that Bemson should remain on the [618]*618lands conveyed, and superintend their cultivation, and that of two other plantations, the property of the donor. The fact is not distinctly stated, but it is of necessary inference from the facts stated that each of these three plantations were supplied with hands and every other necessary appliance for cultivation, the property of the donor. To their cultivation, Remson was to contribute no more than his personal services in superintending them. From all three plantations he was to receive one-fifth of the products of cultivation— receiving no more from the cultivation of the lands conveyed, than from the plantations not conveyed. If compensation was intended to be paid him for removing from his home in Talladega to the lands conveyed—for loss and inconvenience sustained in the removal—for personal services rendered, or to be rendered, it was to be derived from the share of the products of the cultivation of the several plantations, to which the agreement entitled him. We can not regard these as forming part of the consideration of the conveyance of the lands.
When the conveyance was executed, Remson was involved in df'bt, and the donor was of ample fortune. A relationship existed between them, the donor not having probably nearer relatives than Remson and his family, and none so far as is shown, whose condition appealed more strongly to his sympathy. The conveyance does not vest the right to immediate absolute possession until the death of the donor. At his death it confers on Remson a life estate only, with remainder to his wife if she survives him, and all their children except two, for whom other %irovision has been made. The wife of the donor joins in the conveyance for the purpose of releasing her contingent right of dower, and the release is expressed to be in consideration of good will and affection borne to said David H. Remson and family. The whole scheme of the conveyance is testamentary. We do not mean to say that it is a will, though it may closely approach it—but it is a disposition by deed from motives of affection, to take effect after the death of the donor. It has all the elements, qualities, limitations and terms to be found in a voluntary conveyance executed by parties sustaining the relations of the parties to it, surrounded by the circumstances surrounding them, and but few, if any, of the elements of a sale between parties contracting on a valuable consideration. We repeat we cannot doubt it was founded on no other consideration than love and affection—that the parties never thought of buying and selling—and that the [619]*619stress of subsequent and unanticipated events,, lias induced them to suppose that there was some other consideration for it than affection and benevolence. Without closing our eyes to the truth of the transaction—to the motives we irresistibly feel must have actuated the donor, and to the. intent of the parties collected from the circumstances surrounding them, we cannot hesitate to pronounce the conveyance voluntary. It is consequently void as against the appellant.
The decree of the chancellor is reversed and a decree here rendered granting the complainant the relief prayed for.
The recovery in this case is based on a broken covenant of seisin. In such case, the measure of damage is the purchase-money paid, with interest.—See Sedg. Meas, of Damages, marg. 170. But the failure of title and eviction being partial, the recovery must be proportioned to the value of the part of the premises to which the title has failed.—lb. 171. In taking the account, the true measure of recovery is, the proportion which the eighty acres lost bear to the-value of the whole tract conveyed, rating the whole value at $15 per acre. In other words, if the eighty acres was of precisely equal average value with the whole tract, then the complainant’s measure of recovery is twelve hundred dollars with interest. In estimating these damages, the value of the eighty acres as a component part of the tract will be taken into the account, and its value graduated accordingly,, whether above or below the average.
The action at law which resulted in Bibb’s eviction fro rathe eighty acres, was commenced in less than two years after Freeman’s sale and conveyance to him. Damages by way of mesne profits were recovered from him, which together with costs and attorney’s fees he has had to pay. We will make no order of recoupment for the use and occupation enjoyed by Bibb. For these he has accounted to the rightful owner.
It is referred to the register to take and state an account on the principles above expressed; and he will compute interest on the sum ascertained to be due from the sale to the coming in of the report. He will consult all legal evidence on file, and such other evidence as may be offered—with a right to re-examine witnesses heretofore examined. All other questions are reserved for decision by the chancellor.
Stone, J.,' not sitting.