Moore v. Altom

68 So. 326, 192 Ala. 261, 1915 Ala. LEXIS 42

• Court: Supreme Court of Alabama
• Decided: April 15, 1915
• Status: Published

Opinion

McCLELLAN, J.

(1) This bill was. filed by appellee, a creditor of Moore, against appellants. It is framed in tbe alternative: First, to avoid a voluntary or fraudulent conveyance made by tbe defendant Moore to tbe defendant Sherwood; and, second, to enforce a vendor’s lien upon tbe lands described in tbe bill. Only a general demurrer, questioning tbe equity of tbe bill, was filed. It was overruled, and this appeal is to review that ruling alone.

If either alternative relied on for relief is sufficient against tbe general demurerr, an affirmance must be entered here.

(2) According to tbe averments of tbe bill, tbe complainant was an existing creditor of Moore when Moore conveyed tbe land described in tbe bill to Sberwood, for a simulated consideration named in'tbe deed, no part of which has ever been paid. This state of unequivocal allegation would, if sustained by tbe proof, render tbe conveyance to Sberwood voluntary, and void as to existing creditors, without regard to tbe solvency of tbe grantor or to tbe intent entertained by the parties to tbe conveyance at tbe time. — Wallen v. Montague, 121 Ala. 287, 289, 25 South. 773; Wood v. Potts, 140 Ala. 425, 37 South. 253; Sides v. Scharff, 93 Ala. 106, 9 South. 228; Beall v. Lehman Durr Co., 110 Ala. 446, 18 South. 230. Others might be added.

(3) Tbe land described in tbe bill — a very large acreage — is alleged to be situate in Jackson county, Alabama. Tbe jurisdiction of the chancery court of Jackson county to afford tbe relief sought — in either alternative if either of them is sustained by the evidence— is clear, notwithstanding the complainant and the defendant Moore are residents of other states. — Code, §§ 3052, 3054. The case of Lide v. Parker, 60 Ala. 165, involved land situated in the state of Mississippi. It is without any bearing in this instance.

The first alternative of the bill possesses equity, and, under the authorities, is not objectionable.,

(4) It is not necessary to particularly consider the other theory on which relief is prayed. However’, it is proper to note, we think, that this phase of the bill is’ defective in that it omits to aver that Bailey, the former owner of the property, was, along with the real estate agent or agents and Moore, a party to the contract whereby Moore, the purchaser, should pay a definite part of the purchase price to the agent or agents. That averment, if made, would bring the present cause within the ruling made in Zirkle v. Hendon, 180 Ala. 209, 60 South. 834. Had the demurrer specified this objection to the latter theory of the bill, it would have been well taken. Only a general demurrer was interposed.

The decree, on the demurrer filed, must be affirmed.

Affirmed.

Anderson, C. J., and Sayre and Gardner, JJ., concur.