Allen Co. v. Sands

22 Citing cases

  1. Beck v. Vann

    195 So. 716 (Ala. 1940)   Cited 2 times

    Such allegations, required in a bill to declare a conveyance a general assignment, are not necessary in a bill such as this. Whaley v. First Nat. Bank, 229 Ala. 153, 155 So. 574; Harris v. First Nat. Bank, 227 Ala. 86, 149 So. 86; Henderson v. Farley Nat. Bank, 123 Ala. 547, 26 So. 226, 82 Am.St.Rep. 140. The allegation in the bill of voluntary conveyances without consideration and that the purposes of the conveyances were fraudulent and made with intent to hinder, delay or defraud complainant, and proof that complainant's debt antedated the conveyances, cast upon respondents the necessity of showing by averment and proof the bona fides of the transaction. Smith v. McAdams, 207 Ala. 118, 92 So. 411; Landham v. Commercial Co., 227 Ala. 18, 148 So. 434; Allen v. Sands, 216 Ala. 106, 112 So. 528; Morrison v. Federal Land Bank, 232 Ala. 138, 167 So. 288. Where suit is brought by a creditor to set aside a fraudulent conveyance made more than four months before a petition in bankruptcy, the court in which the proceeding is pending is not required to stay the proceeding. Connell v. Walker, 291 U.S. 1, 54 S.Ct. 257, 78 L.Ed. 613; 11 U.S.C.A. § 29; Pocahontas Graphite Co. v. Minerals Sep. N. A. Corp., 215 Ala. 225, 109 So. 873; Johnson D. G. Co. v. Drake, 219 Ala. 140, 121 So. 402.

  2. Umphrey v. Barfield

    238 Ala. 11 (Ala. 1939)   Cited 27 times
    In Umphrey v. Barfield, 238 Ala. 11, 13, 189 So. 64, 65 (1939), this Court reasoned that "... while this relationship [the husband-wife relationship] is not within itself a badge of fraud, 'yet under all the authorities, supported by reason and common sense,' transactions between persons occupying such relationship are to be jealously watched and must be subjected to closer scrutiny than would be required of a stranger."

    In a suit by a creditor to set aside a mortgage given by debtor to his wife, as being voluntary and made to hinder, delay and defraud his creditors, where answer is wholly insufficient in averring affirmative matters of defense and only a general denial, proof of facts showing mortgage was not fraudulent, which constitutes matters of defense and which were not stated in the answer, cannot aid the respondent's case, and such evidence presented no bar to the granting of the relief sought by the bill. Gamble v. C. Aultman Co., 125 Ala. 372, 28 So. 30; Allen Co. v. Sands, 216 Ala. 106, 112 So. 528; Schall v. Weil Sons, 103 Ala. 411, 15 So. 829; Smith v. M. C. McAdams Co., 207 Ala. 118, 92 So. 411; Noble v. Gilliam, 136 Ala. 618, 33 So. 861; Robinson v. Moseley, 93 Ala. 70, 9 So. 372; Davis v. Harris, 211 Ala. 679, 101 So. 458; Rawleigh Co. v. Gaines, 236 Ala. 199, 181 So. 247. But if it be conceded that the answer did set forth an affirmative defense, complainant was entitled to recover for the reason that respondents by their evidence did not in law prove a sufficient and adequate consideration and that the conveyance was not made to hinder, delay or defraud the husband's creditors. In such transaction as alleged in the bill, between husband and wife the law places upon them the onus of proving the validity of such conveyance by clearer and stronger proof than it requires of strangers, and such conveyance will be presumed fraudulent until the contrary clearly and affirmatively appears by the proof.

  3. Williams v. Ellington

    172 So. 903 (Ala. 1937)   Cited 32 times

    This placed on them the burden of proving the conveyance was founded on an adequate and valid consideration. Schall v. Weil, 103 Ala. 411, 15 So. 829; Allen Co. v. Sands, 216 Ala. 106, 112 So. 528. In view of the relation between grantor and grantees, the burden was upon them to show adequacy of consideration by clearer and fuller evidence than is required in transactions between strangers.

  4. Alexander v. Bond Bros

    168 So. 561 (Ala. 1936)   Cited 6 times

    The burden was on respondent to show adequate consideration for the conveyance and bona fides of the transaction. Robinson v. Moseley, 93 So. 70, 9 So. 372; Wimberly v. Montgomery Fert. Co., 132 Ala. 107, 31 So. 524; Gamble v. C. Altman Co., 125 Ala. 372, 28 So. 30; British, etc., Co. v. Norton, 125 Ala. 522, 28 So. 31; Allen Co. v. Sands, 216 Ala. 106, 112 So. 528; Trapp v. First Nat. Bank, 217 Ala. 587, 117 So. 197. BROWN, Justice.

  5. Buchmann v. Callahan

    222 Ala. 240 (Ala. 1931)   Cited 31 times

    Mecklin v. Deming, 111 Ala. 159, 20 So. 507; Shows v. Brantley, 127 Ala. 352, 28 So. 716. It was not necessary for Martin to foreclose his mortgage after maturity in order for the legal title to the land to have reposed in him. Wildman v. Means, 208 Ala. 489, 94 So. 823; Hambrick v. New England Mortg. Sec. Co., 100 Ala. 551, 13 So. 778; Mewburn's Heirs v. Bass, 82 Ala. 622, 2 So. 520; Thompson v. Union Warehouse Co., 110 Ala. 499, 18 So. 105; Hughes Tidwell Supply Co. v. Carr, 203 Ala. 469, 83 So. 472; Dennis v. McEntire Mercantile Co., 187 Ala. 314, 65 So. 774; Metcalf v. Clemmons-Powers Co., 200 Ala. 243, 76 So. 9; Allen Co. v. Sands, 216 Ala. 106, 112 So. 528. Growing crops are part of the land and pass with the title to the purchaser. Thweat v. Stamps, 67 Ala. 96; Carlisle v. Killebrew, 89 Ala. 329, 6 So. 756, 6 L.R.A. 617; American F. L. M. Co. v. Turner, 95 Ala. 272, 11 So. 211. Where the mortgagor has defaulted in payment under the mortgage contract, the mortgagee by an active assertion of his right is entitled to possession of the land and the rents, income, and profits therefrom.

  6. McCollum v. Burton

    220 Ala. 629 (Ala. 1930)   Cited 20 times
    In McCollum v. Burton, 220 Ala. 629, 127 So. 224, the complainant recovered a judgment in a tort action after the statute (on October 18, 1926), and sought by the bill to set aside conveyances of real property of date of October 25, 1926, in fraud of the rights of the original plaintiff.

    Gunn v. Hardy, 130 Ala. 642, 31 So. 443; McCrory v. Donald, 192 Ala. 312, 68 So. 306; Allen v. Overton, 208 Ala. 504, 94 So. 477; Wood v. Potts Potts, 140 Ala. 425, 37 So. 253. A conveyance of all or substantially all of a debtor's property renders the conveyance void. Gant v. Dunn, 215 Ala. 411, 110 So. 903; London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 So. 359; Burnwell Coal Co. v. Setzer, 203 Ala. 395, 83 So. 139. The defense of innocent purchaser is not sufficiently pleaded or proven. Allen Co. v. Sands, 216 Ala. 106, 112 So. 528; Smith v. M. C. McAdams Co., 207 Ala. 118, 92 So. 411. A purchaser is chargeable with notice of every deed which constitutes a necessary link in his chain of title, and, if any deed is clearly fraudulent on its face, he is not entitled to protection as a bona fide purchaser without notice. Johnson v. Thweatt, 18 Ala. 741; Burnwell Coal Co. v. Setzer, supra; Austin v. Willis, 90 Ala. 421, 8 So. 94. A grantee in a quitclaim deed cannot be an innocent purchaser.

  7. Jones v. Butler

    286 Ala. 69 (Ala. 1970)   Cited 17 times
    In Jones v. Butler, 286 Ala. 69, 237 So.2d 460 (1970), the purchaser at a foreclosure sale brought an ejectment action against the mortgagor in possession, and the supreme court stated that when "the original mortgage and foreclosure deed, or certified copies of the record thereof, were introduced in evidence, coupled with proof of demand for possession, and failure to deliver possession, such introduction made out a prima facie case for [the plaintiff who brought the ejectment action]."

    The execution and delivery by appellee of her note and mortgage to Burchwell Company conveyed to said mortgagee appellee's legal title to the property subject to the conditions of said mortgage. R. W. Allen Co. v. Sands, 216 Ala. 106, 112 So. 528, 529; Cook v. Benton, 245 Ala. 683, 18 So.2d 405. Mortgagor, Mrs. Butler, having retained possession of the subject property which she mortgaged to Burchwell Company (as the evidence shows) was possessed of legal title against all the world except Burchwell Company, or its assignee.

  8. Smith v. Wilder

    270 Ala. 637 (Ala. 1960)   Cited 35 times
    In Smith v. Wilder, 270 Ala. 637, 120 So.2d 871 (1960), this Court further articulated some of the principles governing fraudulent conveyances.

    These opinions do not limit the rule to instances where the consideration was an existing debt owed the grantee by the grantor or where the proof showed that the grantor was insolvent, failing or financially embarrassed when he made the conveyance. Strickland v. Stuart, 200 Ala. 541, 76 So. 867; R. W. Allen Co. v. Sands, 216 Ala. 106, 112 So. 528; Harrison v. American Agricultural Chemical Co., 220 Ala. 695, 127 So. 513; Kuykendall v. Terry, 227 Ala. 227, 149 So. 687; Williams v. Ellington, 233 Ala. 638, 172 So. 903; Umphrey v. Barfield, 238 Ala. 11, 189 So. 64; Greer v. Altoona Warehouse Co., 246 Ala. 297, 20 So.2d 513. On the other hand we have opinions written since the London Case which are to the effect that when the complainant shows that his debt antedates the conveyance the grantee need only show that he paid a present valuable consideration.

  9. Smith v. Bunch

    73 So. 2d 729 (Ala. 1954)   Cited 4 times

    "Where creditors' bill to set aside fraudulent conveyances and the proof introduced shows that the debt antedated the conveyances attacked as fraudulent, the burden is shifted to the grantees to sustain by averment and proof the bona fides of such conveyances. Smith v. M. C. McAdams, [ Co.], 207 Ala. 118, 92 So. 411; Landham v. Commercial, etc., 227 Ala. 18, 148 So. 434; Allen Co. v. Sands, 216 Ala. 106, 112 So. 528; Umphrey v. Barfield, 238 Ala. 11, 189 So. 64; Morrison v. Federal Land Bank, 232 Ala. 138, 167 So. 288."

  10. Kilgore v. Gamble

    44 So. 2d 767 (Ala. 1950)   Cited 8 times
    In Kilgore v. Gamble, 253 Ala. 334, 44 So.2d 767, it is said that under those circumstances it was the proper course to make the deposit as provided in section 304. It is also supported by the companion case of Kilgore v. Roberts, 254 Ala. 708, 48 So.2d 886. The case of Kilgore v. Gamble did not refer to the Farmer case, supra. It is clear the statements made in the two cases conflict.

    A mortgagee has the legal title to the mortgaged property. R. W. Allen Co. v. Sands, 216 Ala. 106, 112 So. 528; Ritter v. Moseley, 226 Ala. 648, 148 So. 143; Wilson v. Fed. Land Bank, 230 Ala. 75, 159 So. 493; Cook v. Benton, 245 Ala. 683, 18 So.2d 405; Moorer v. Tensaw Land Timber Co., 246 Ala. 223, 20 So.2d 105. The owner of a recorded mortgage is entitled to written notice of the tax sale of property described in his mortgage and may redeem at any time within one year of said notice. Code 1940, Tit. 51, § 303; Ala. Mineral Land Co. v. McFry, 236 Ala. 632, 184 So. 192; Farmer v. Hill, 240 Ala. 416, 199 So. 820. The transferee or assignee of a mortgage has all of the rights his transferor or assignor had. 41 C.J. 710; 59 C.J.S., Mortgages, § 395, page 555; McAllister v. Catchings, 210 Ala. 392, 98 So. 303; Dillard v. Propst, 212 Ala. 664, 103 So. 863.