Brock v. Price

80 So. 402, 202 Ala. 320, 1918 Ala. LEXIS 404

• Court: Supreme Court of Alabama
• Decided: November 14, 1918
• Docket: 8 Div. 126.
• Status: Published

Opinion

McCLELLAN, j.

This bill was filed by the complainant (appellant), as a creditor of E. H. Price, against the respondents (appellees), seeking the ascertainment and imposition of a lien for a debt for house rent, in the amount of $225, with interest, on certain real estate in Decatur which had been conveyed to Mrs. Price, the wife of the complainant’s debtor, by J. W. Wortham and wife. The complainant asserts that his debtor, E. H. Price, fraudulently diverted funds from the course of Price’s obligation to pay complainant to either a contribution towards the payment of the cash installment ($1,000) for the property, or to payments on a $2,000 mortgage on the property in favor of a building and loan association. If so, the complainant was erroneously denied the relief sought in the bill; but, on the other hand, if the debtor did not contribute of his earnings or other funds to the purchase of the property, conveyed to the wife, or to its exoneration from any part of the charge of the mortgage, then, of course, the complainant was not entitled to relief, as the court below held.

The review here is of the conclusion of fact indicated; and so, on the assumption (for the occasion only) that complainant was, at the time of the purchase and conveyance of the property to Mrs. Price, and continuously, subsequently, a creditor of E. H. Price, and also that Mrs. Price had the burden “to affirmatively show that the consideration,” or the money paid on the mortgage, “moved from her, that she paid the purchase money,” and the installments on the mortgage, “with her own funds, and not with the funds of her husband, directly or indirectly.” Kelley v. Connell, 110 Ala. 543, 18 South. 9.

The evidence bearing on this issue of fact has been carefully considered. Our opinion is that the stated burden was fully discharged by Mrs. Price. The argument to the contrary is that the testimony of Mrs. Price, E. H. Price, and Mrs. Farrar, the mother of Mrs. Price, is so vague and evasive in material respects as to cast upon it a wholly discrediting cloud of suspicion and distrust. The argument is ill founded. The sources of Mrs. Price’s income and the source from which she received some of the money applied to the mortgage debt, viz., her mother, who resided with her, are disclosed with all reasonable completeness and regard to detail. Several years had elapsed since the matters brought under inquiry had taken place. She took boarders and rented rooms, giving many of their names and the rates they paid. That, though a woman not robust or always well, she strove, in every way, while a resident of Decatur, to earn something toward the support of the family, and toward the discharge of the mortgage debt, is proven beyond any material doubt; and Chat tíhe made, when all things are weighed, a considerable sum, is established. That her mother, who resided with her, should have given her money, at different times and in moderate sums not now to be accurately recalled, is likewise consistent with the natural, the probable, and the reasonable. The source of the mother’s income was definitely, indisputably shown, with specific reference to the place, the manager of the mother’s affairs thereat, and the banks with which the mother there dealt. If the testimony of the mother and daughter was suspected, the means and the place to verify it were plainly pointed out by them. The fact that E. H. Price gave the checks of the drug company, with which he was connected, to the mortgagee, was satisfactorily explained, in this way: That the wife gave him the money or its equivalent that he might pay the respectively maturing installments on the mortgage through the checks of the drug company, he (the husband) charging himself with the amounts of the respective checks on his book account with the drug company, by which he was paid a salary of $100 per month. This explanatory testimony is not impeached or reflected upon, except by the argument that it is gravely suspicious and should be distrusted. We are not so convinced. A fair conclusion from the evidence otherwise bearing on the issue of fact stated satisfies this court that the explanation offered is true.

In our opinion the court below gave effect in its decree to the only conclusion sustainable under the evidence.

Affirmed.

MAYFIELD, SAYRE, and GARDNER, JJ„ concur.