Sutterer v. Morris Fertilizer Co.

95 So. 166, 208 Ala. 687

• Court: Supreme Court of Alabama
• Decided: January 11, 1923
• Docket: 6 Div. 802.
• Status: Published

Opinion

GARDNER, J.

Bill by appellee as a creditor of John F. Sutterer to set aside certain conveyances executed by the debtor as fraudulent and void as against the complainant—■ a then existing creditor. The general demurrer that the bill was without equity was interposed to the bill in its several aspects, which demurrer was overruled, and from which decree respondents prosecute this appeal.

The conveyances are sought to be avoided upon two theories: The first, that they were voluntary conveyances, and the recited consideration false and fictitious. The sufficiency of the bill in this aspect is not questioned. The second theory, that the property conveyed was of value far in excess of any consideration actually paid, and that the conveyances were executed for the express purpose of hindering, delaying, and defrauding complainant in the collection of its debt, which purpose was known to said grantees.

The. equity of this feature of the bill is attacked upon the sole ground that there is no averment that the debtor, John F. Sutterer, was insolvent at the time of the execution of such conveyances. Under such averments of actual fraudulent intent, the insolvency of the debtor is not essential, as has been frequently decided by this court, and we content ourselves with a citation of a few of the authorities. Teague v. Bass, 131 Ala. 422, 31 South. 4; Beall v. Lehman-Durr & Co., 110 Ala. 446, 18 South. 230; Tyson v. Southern Cotton Oil Co., 181 Ala. 256, 61 South. 278; Montgomery, etc., Mfg. Co. v. Leith, 162 Ala. 246, 50 South. 210; London v. Anderson Brass Works, 197 Ala. 36, 72 South. 359.

The decree overruling the demurrer is correct, and will accordingly be here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.