Opinion
6 Div. 58.
December 16, 1920.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
P. E. Culli, of Gadsden, for appellant.
Any conveyance of property made with intent to defeat alimony is void and may be set aside by the wife, although the conveyance was made prior to the divorce proceedings. 20 Cyc. 431; 14 Cyc. 798; 11 Gray (Mass.) 258, 71 Am. Dec. 711; 7 Md. 537, 61 Am. Dec. 375; 8 S.D. 198, 65 N.W. 1075, 59 Am. St. Rep. 761. See, also, 219 Ill. 146, 76 N.E. 86, 109 Am. St. Rep. 316; 134 Iowa, 75, 108 N.W. 762, 9 L.R.A. (N.S.) 955, 120 Am. St. Rep. 412, 13 Ann. Cas. 101; 28 Ind. App. 9, 62 N.E. 100, 91 Am. St. Rep. 107.
Russell Johnson, of Oneonta, for appellees.
No brief reached the Reporter.
The undisputed evidence shows that Thomas, one of the appellees, had the legal title to the land, but the other appellee, A. B. Bolen, at one time had an equitable claim to same, having been put in possession and paid Thomas all, or part, of the purchase money. The respondent's evidence, however, showed that several years before A. B. Bolen married this complainant, he resold or surrendered his equity in the land to the said Thomas for a valuable consideration and was in the possession of the land, not as owner, but at will of Thomas. In other words, he had no such interest, legal or equitable, in the land as would enable him or his wife to successfully assert a claim to the same as a homestead or otherwise. It is true, the last payment to Bolen under the repurchase was not made until after he had married this complainant, but the respondent's evidence shows that the last trade was made long before the marriage and in all probability before it was ever contemplated. The evidence was taken ore tenus, the trial court saw and heard the witnesses, and there was sufficient evidence to support its conclusion and finding to prevent a disturbance of same by this court under the well-recognized rule so frequently announced and followed in cases where the trial court bad the advantage over this court of seeing and hearing the witnesses. Fitzpatrick v. Stringer, 200 Ala. 574, 76 So. 932, and other cases there cited.
The decree of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.