HARALSON, J.
1, The demurrer to the bill was properly overruled. The complainant was a judgment creditor, with an execution, issued thereon, returned no property found ; and besides, it is shown, that the judgment having been rendered against the defendant in his favor, on the 22 May, 1891, was duly recorded in the probate office of Mobile county, on the 7th April, 1892. As such judgment creditor, he had an election to proceed by bill in equity to have the alleged fraudulent conveyance and transfer of said stock set aside, for the purpose of making his lien effectual. — Code,§ 1735; Evansv. Welch, 63 Ala. 250 ; Lehman v. Meyer, 67 Ala. 396 ; Betts v. Nichols, 84 Ala. 278 ; Marble City Land Co. v. Golden, 17 So. Rep. 935 ; Raisin Fertilizer Co.v. Bell, 18 So. Rep. 168.
2. The chancellor committed no error of which defendants can complain, in holding that under the circumstances in this case, a foot-note to the amended bill was not necessary. In the Alabama Warehouse Co. v. Jones, 62 Ala. 550, it was held, that under our practice (Rule 42 Chancery Pr.) amendments may be made by simply striking out facts of a bill or answer, by interlineation or erasure, when of a brief character, the essential thing being, that the amendment must be made in such manner, that it may be ascertained in what it consists ; that where new matter was embraced in a single paragraph, a foot-note requiring an answer to it was unnecessary, and that such note is necessary, when the bill is divided into sections, and numbered, and a defendant has a right to know which of these he is required to answer.
In the case before us, the original bill was divided into five short sections, and the oath of defendants was waived as to each. The amendments proposed to the 2d and 4th, consisted of interlineations of a brief character, introducing no new matter, but making clearer averments already in the bill. The amendment to the first section, was to make that section fuller in the de[516]*516scription of the judgment the bill was filed to enforce, in stating the cause of action on which it was founded and when, it arose; and the one allowed to the third paragraph, wat a fuller specification of the ownership by the defendant, John M. Ladd, of the thirteen shares of stock in the bank, which the bill seeks to- reach as having been transferred in fraud of complainant, by stating the dates at which he was the bona fide owner of them. The amendments were perhaps unnecessary, but were added by wav of caution, for a clearer statement of matters already averred. The defendants had already answered the original bill, and as to the matters of these amendments, had made responses in substance the same as repeated in the answers to the amendments. In the original bill, defendants set up matters of defense to the bill not strictly responsive, and such as under the rules of pleading they wei e bound to prove, and being relieved from making answers under oath, these answers were not verified. Because of the absence of a foot-note to the amendments which were filed, waiving oath, the defendants set up in their answers to the amendments, these same defensive matters set up in the original answers, and making oaths to them, claim the privilege for them as evidence, such as is accorded in equity practice, when sworn answers are required. This claim, under the circumstances just stated is untenable.
3. We need not enter into any extended discus-sion of the question whether the proceeds of the sales of timber cut from the lauds of the wife by the husband, constitute a part of the profits of the land, according to the strict definition of that term. It is conceded, that growing trees are, generally, a part of the land. Where one owns lands mainly unfit, as here, for any other purpose, than for the timbers that grow upon them, it would be a narrow construction of the word, profits, to say, that the cutting, removal and sale of such timbers did not constitute profits arising from the lands.. “In the law of real property, ‘profit’ is used in a special sense to denote a produce or part of the soil or land. Therefore, ‘if a man seized of lands in fee by his-deed granteth to another the profit of those lands, to-have, and to hold to him and his heires, and maketh livery secundum formum chartae, the whole land itself doth pass : for what is the- land, hut the profits thereof, [517]*517for thereby vesture, herbage, trees, mines and all whatsoever parcell of that land doth pass.’ (Co. Litt. 4b.)” Rapalje & Lawrence Law Die. 1020, title, Profit. Profits a préndre, are rights of taking the produce or part of the soil from the land of another person. — 2 Bou v. Law Die. 472 ; 19 Am. & Eng. Ency. of Law, 260.
The deed from defendant, J. M. Ladd, to his wife, the defendant, Martha M. Ladd, of date 14th Jan’y 1865, to the lands off which trees were cut and appropriated by J. M. Ladd, was a conveyance, directly to her by him, of said lands. Under the decisions of this court in construction of the married woman’s law of that time, the estate she acquired in said lands was her equitable separate estate. — 3 Brick. Dig. p. p. 543-4, §§ 23, 27, 28.
In respect to the rents and profits of her equitable separate estate, it was held that the wife might prevent hen" husband from receiving them. As was said in Newlin v. McAfee, 64 Ala. 367, “By her express dissent, or by express agreement with him, she may render him liable to account for them. But, if she does not dissent nor require an express promise from him to account, the presumption of a gift must prevail. When a controversy arises between the wife and the creditor of the husband, especially after the lapse of many years, while the husband may have been engaged in mercantile pursuits, in the course of which credit may have been extended to him on the faith of the presumption, the proof to repel it should be clear and convincing,” — Allen v. Terry, 73 Ala. 123 ; Allen v. Allen, 80 Ala. 180.
The proofs, as furnished by defendants themselves, show, that these lands had been used by the husband since 1853, for the purpose of cutting and selling the timber from them ; that this continued after their voluntary conveyance to Irer in 1865, just as it had done before ; that he kept no account of the trees cut and knows how many and their value, only, by counting the stumps ; that he had no other source of income and apppropriated the money to his own uses and to the support of liis family, how much in either direction he had no means of ascertaining; that he never gave to his wife any proceeds arising from the sale of the trees, or made any settlement or accounting with her for them ; that his wife never, in so many words, made a direct demand on him [518]*518for payment, but many times stated to him that he was in debt to her for the timber so cut off of her lands, and he always bore it in mind to pay her in installments as he might be able.
After reviewing the evidence, the chancellor in a well considered opinion, which we approve, says, “The husband shows in answer to the first cross-interrogatory to him that the wife never, in so many words, made a direct demand of payment from him, but many times stated to him that he was indebted to her for the timber cut off of her lands. But she does not show that she insisted that he should stop cutting or pay up, or that he was ever stopped, or promised to pay her for such cutting. It is clear that she knew of such cutting and assented to it.
Free access — add to your briefcase to read the full text and ask questions with AI
HARALSON, J.
1, The demurrer to the bill was properly overruled. The complainant was a judgment creditor, with an execution, issued thereon, returned no property found ; and besides, it is shown, that the judgment having been rendered against the defendant in his favor, on the 22 May, 1891, was duly recorded in the probate office of Mobile county, on the 7th April, 1892. As such judgment creditor, he had an election to proceed by bill in equity to have the alleged fraudulent conveyance and transfer of said stock set aside, for the purpose of making his lien effectual. — Code,§ 1735; Evansv. Welch, 63 Ala. 250 ; Lehman v. Meyer, 67 Ala. 396 ; Betts v. Nichols, 84 Ala. 278 ; Marble City Land Co. v. Golden, 17 So. Rep. 935 ; Raisin Fertilizer Co.v. Bell, 18 So. Rep. 168.
2. The chancellor committed no error of which defendants can complain, in holding that under the circumstances in this case, a foot-note to the amended bill was not necessary. In the Alabama Warehouse Co. v. Jones, 62 Ala. 550, it was held, that under our practice (Rule 42 Chancery Pr.) amendments may be made by simply striking out facts of a bill or answer, by interlineation or erasure, when of a brief character, the essential thing being, that the amendment must be made in such manner, that it may be ascertained in what it consists ; that where new matter was embraced in a single paragraph, a foot-note requiring an answer to it was unnecessary, and that such note is necessary, when the bill is divided into sections, and numbered, and a defendant has a right to know which of these he is required to answer.
In the case before us, the original bill was divided into five short sections, and the oath of defendants was waived as to each. The amendments proposed to the 2d and 4th, consisted of interlineations of a brief character, introducing no new matter, but making clearer averments already in the bill. The amendment to the first section, was to make that section fuller in the de[516]*516scription of the judgment the bill was filed to enforce, in stating the cause of action on which it was founded and when, it arose; and the one allowed to the third paragraph, wat a fuller specification of the ownership by the defendant, John M. Ladd, of the thirteen shares of stock in the bank, which the bill seeks to- reach as having been transferred in fraud of complainant, by stating the dates at which he was the bona fide owner of them. The amendments were perhaps unnecessary, but were added by wav of caution, for a clearer statement of matters already averred. The defendants had already answered the original bill, and as to the matters of these amendments, had made responses in substance the same as repeated in the answers to the amendments. In the original bill, defendants set up matters of defense to the bill not strictly responsive, and such as under the rules of pleading they wei e bound to prove, and being relieved from making answers under oath, these answers were not verified. Because of the absence of a foot-note to the amendments which were filed, waiving oath, the defendants set up in their answers to the amendments, these same defensive matters set up in the original answers, and making oaths to them, claim the privilege for them as evidence, such as is accorded in equity practice, when sworn answers are required. This claim, under the circumstances just stated is untenable.
3. We need not enter into any extended discus-sion of the question whether the proceeds of the sales of timber cut from the lauds of the wife by the husband, constitute a part of the profits of the land, according to the strict definition of that term. It is conceded, that growing trees are, generally, a part of the land. Where one owns lands mainly unfit, as here, for any other purpose, than for the timbers that grow upon them, it would be a narrow construction of the word, profits, to say, that the cutting, removal and sale of such timbers did not constitute profits arising from the lands.. “In the law of real property, ‘profit’ is used in a special sense to denote a produce or part of the soil or land. Therefore, ‘if a man seized of lands in fee by his-deed granteth to another the profit of those lands, to-have, and to hold to him and his heires, and maketh livery secundum formum chartae, the whole land itself doth pass : for what is the- land, hut the profits thereof, [517]*517for thereby vesture, herbage, trees, mines and all whatsoever parcell of that land doth pass.’ (Co. Litt. 4b.)” Rapalje & Lawrence Law Die. 1020, title, Profit. Profits a préndre, are rights of taking the produce or part of the soil from the land of another person. — 2 Bou v. Law Die. 472 ; 19 Am. & Eng. Ency. of Law, 260.
The deed from defendant, J. M. Ladd, to his wife, the defendant, Martha M. Ladd, of date 14th Jan’y 1865, to the lands off which trees were cut and appropriated by J. M. Ladd, was a conveyance, directly to her by him, of said lands. Under the decisions of this court in construction of the married woman’s law of that time, the estate she acquired in said lands was her equitable separate estate. — 3 Brick. Dig. p. p. 543-4, §§ 23, 27, 28.
In respect to the rents and profits of her equitable separate estate, it was held that the wife might prevent hen" husband from receiving them. As was said in Newlin v. McAfee, 64 Ala. 367, “By her express dissent, or by express agreement with him, she may render him liable to account for them. But, if she does not dissent nor require an express promise from him to account, the presumption of a gift must prevail. When a controversy arises between the wife and the creditor of the husband, especially after the lapse of many years, while the husband may have been engaged in mercantile pursuits, in the course of which credit may have been extended to him on the faith of the presumption, the proof to repel it should be clear and convincing,” — Allen v. Terry, 73 Ala. 123 ; Allen v. Allen, 80 Ala. 180.
The proofs, as furnished by defendants themselves, show, that these lands had been used by the husband since 1853, for the purpose of cutting and selling the timber from them ; that this continued after their voluntary conveyance to Irer in 1865, just as it had done before ; that he kept no account of the trees cut and knows how many and their value, only, by counting the stumps ; that he had no other source of income and apppropriated the money to his own uses and to the support of liis family, how much in either direction he had no means of ascertaining; that he never gave to his wife any proceeds arising from the sale of the trees, or made any settlement or accounting with her for them ; that his wife never, in so many words, made a direct demand on him [518]*518for payment, but many times stated to him that he was in debt to her for the timber so cut off of her lands, and he always bore it in mind to pay her in installments as he might be able.
After reviewing the evidence, the chancellor in a well considered opinion, which we approve, says, “The husband shows in answer to the first cross-interrogatory to him that the wife never, in so many words, made a direct demand of payment from him, but many times stated to him that he was indebted to her for the timber cut off of her lands. But she does not show that she insisted that he should stop cutting or pay up, or that he was ever stopped, or promised to pay her for such cutting. It is clear that she knew of such cutting and assented to it. It is also clear, that even if he did bear in mind to pay her, he did not bear in mind to consider it a]f,Jdebt until he was pressed by suit. Until then, no stumps were counted, and now, all, old and new are counted against his just obligations. The perusal of the testimony but convinces me, that there is, and has been no debt between these parties, that the wife can, in equity and good conscience, be allowed to collect. For this reason I hold the transfer of this stock invalid as to complainant.”
Of the transfer of this stock he says, “There is some attempt to aver and prove that Mrs. Ladd had owned such shares for several years prior to such date ; (the 18th May, 1891, when they were formally transferred to her on the books of the bank), but, no candid reader of Ladd’s testimony can believe that such was the case. Prior to that date, there may have floated about in the brain of Ladd and his wife, the idea that he ought to give her said stock, or pay it to her on account of what he might have owed her for her timber. But such thought did not ripen into action before said date, and then only when it was quickened into life for fear of the result of the pending action.”
4. At this point, the learned chancellor might have closed his opinion, with a decree for complainant; but, he pursues the case by a discussion of the evidence in the cause, and concludes that the transfer of the stock was without consideration, fraudulent and void as against complainant. It is unnecessary for us to go over the same grounds he did, to arrive at the same conclu[519]*519sion. We are not satisfied that he erred in his finding on the facts, and must approve it. ' One thing is worthy of further remark in this connection, that on the same day said Ladd transferred this stock to his wife, on the books of the bank, — the 18th May, 1891, — he conveyed substantially all his other property to his two sons and one Clarke, taking their joint notes for the same, and thereby, in both transactions, stripped himself of all he had, liable to execution.
5. It is unnecessary to decide, as the chancellor declined to do, whether rents and profits of the wife’s statutory estate, under the present Code, which is not equitable, may not be given to the husband, as she might have given them to him under the law existing before the Act of 1887. The defendants have not shown how many trees were cut and their value, before the passage of that Act, and how many' and their value since. The evidence tends to show, that the cutting has gone on yearly, since 1853, to the date of the filing of the bill, still no data is given to ascertain how much has been cut during and since the year 1887. The nearest approach to making the proof is, that said Jno. M. Ladd testified, he had cut.altogether about $7,000 worth of cypress from said lands, and about five or six thousand dollars of it, in the last ten or twelve years. He had been cutting about forty years, and if in that time he cut $7,000, it strikes one that more wá!s cut in the first thirty and less in the last ten years, than the witness here estimates. And besides, there is nothing to indicate, that his stock was taken to pay a debt originating since that time, but the claim .is, that it was for a debt beginning and accruing yearly, since 1865. The evidence at this point, as we have stated, is too vague and uncertain on which to base reliable judgment. If we were to hold that Ladd owed his wife for trees cut off her land since the .passage of the married woman’s law, in 1887, an amount equal to the value of the stock transferred to her, or any other amount, it would be the result of inference, without sufficient evidence to sustain it, rather than of satisfactory proof. The decree must be affirmed.
Affirmed.