Flewellen v. Crane

58 Ala. 627

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

BEICKELL, C. J.

1. A judgment creditor may, at law, proceed to the sale under execution of lands which his debtor has fraudulently aliened; and the purchaser may, in ejectment, recover them of the fraudulent donee. — Carter v. Castleberry, 5 Ala. 277. But the existence of this right does not interfere with the right to resort to a court of equity for the vacation of the fraudulent conveyance, as an obstacle in the way of the full enforcement of the judgment, and a cloud on the title to the property. — P. & M. Bank v. Walker, 7 Ala. 926; Dargan v. Waring, 11 Ala. 988. The grounds of demurrer assigned were, consequently, not well taken, if the bill discloses a case for equitable relief.

2. The conveyance sought to be vacated is exhibited with the bill, and on its face recites that it is made in payment of twenty thousand dollars, due from the grantor to the grantee. The averments of the bill are, that the grantor was insolvent at the time of its execution; and that it conveyed all his property wbieli was subject to levy and sale; and that it is “fraudulent and void as against pre-existing creditors,” and was “made with intent to hinder, delay, or defraud said creditors.” It is now insisted that these averments are insufficient to support the decree vacating the deed — that there is no averment impeaching the bonafides or sufficiency of the consideration expressed in it; no averment that the debt was not real, and the conveyance accepted in payment of it; no averment that there was any secret trust for the grantor, and no averment of any fact which authorizes the mere conclusion, stated in the bill, that the conveyance is fraudulent. Fraud is a conclusion of law from facts stated and proved. When it is pleaded, at law, or in equity, the facts out of which it is supposed-to arise must be stated: a mere general averment, without such facts, is not sufficient. The court cannot, on such averment, pronounce judgment. — Kinder v. Macey, 7 Cal. 206; Catchings v. Manlove, 39 Miss. 667; Clay v. Dennis, 3 Ala. 375; Bryan v. Spruill, 4 Jones, Eq. 27; Story’s Eq. Pl. § 251 a. A demurrer to such pleading is not a confession of the fraud; for a demurrer confesses only the matters of fact which are well pleaded, and not conclusions or inferences of law or fact. — 1 Dan. Ch. Pr. 545.

3. The case presented by the bill, then, is that of a preference of a particular creditor by an insolvent debtor, the effect of which is to disappoint all other creditors. It was competent for the debtor to confer, and for the creditor to accept such preference.

4. It has been repeatedly adjudged in this court, that a decree, founded on a bill which does not aver facts authorizing the, court to grant relief, will be reversed on error, though no objection may have been interposed in the Court of Chancery. A complainant must by his bill make out his title to relief. The decree is founded on it; and if, so far from making out a title to relief, the bill discloses that he has no right, the decree cannot be supported. — 1 Brickell’s Digest, 731, § 1343.

Let the decree be reversed, and the cause remanded.