Opinion
6 Div. 480.
March 25, 1926. Rehearing Denied May 13, 1926.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Russell Johnson, of Oneonta, for appellant.
Complainant, having conveyed his property to a relative to defraud his creditors, does not come into equity with clean hands. 21 C. J. 184; 16 C. J. 145; Harton v. Little, 188 Ala. 640, 65 So. 951; Baird v. Howison, 154 Ala. 359, 45 So. 668; Heinz v. White, 105 Ala. 670, 17 So. 185; Glover v. Walker, 107 Ala. 540, 18 So. 251. When it appears, from the circumstances attending execution of the deed, that it was the intention of the maker that the deed should take effect, this will be a sufficient delivery, though the maker remains in the custody of the deed. Arrington v. Arrington, 122 Ala. 510, 26 So. 152; Farr v. Chambless, 175 Ala. 659, 57 So. 458; 18 C. J. 196. The recital of a valuable consideration is binding on the grantor, in the absence of fraud. Ohmer v. Boyer, 89 Ala. 273, 7 So. 663; Wilkerson v. Tillman, 66 Ala. 532; M. M. R. Co. v. Wilkinson, 72 Ala. 286.
Ward, Nash Fendley, of Oneonta, for appellee.
The administration was properly removed. Acts 1915, p. 738; Code 1923, § 6478. There could have been no fraud in execution of the deed to Hale, the lands being complainant's homestead and not subject to levy and sale. Sims v. Gaines, 64 Ala. 392; Fellows v. Lewis, 65 Ala. 343, 39 Am. Rep. 1; Lehman Co. v. Bryan, 67 Ala. 558; Fuller v. Whitlock, 99 Ala. 411, 13 So. 80. But said deed passed no title, since the deed was not delivered and purchase price was not paid. Ashford v. Prewitt, 102 Ala. 264, 14 So. 663, 48 Am. St. Rep. 37. A resulting trust arose in favor of complainant to one-half interest in the lands jointly purchased by him with the deceased. Beadle v. Seat, 102 Ala. 532, 15 So. 243.
The bill had for its primary purpose the quieting of title to the lands made the subject thereof, and the selling of lands for division among joint owners.
The answer of the personal representative and other defendant was that the legal and equitable titles to said lands were in J. A. Helms at the time of his death immediately preceding the filing of the bill. The cross-bill of the administrator and of P. M. Helms individually denied complainant's ownership in the lands; averred that by mesne conveyances from complainant to J. A. Helms the latter was the owner of the lands; and prayed relief according to the facts as between the proper and necessary parties before the court, and that the decree declare the lack of title in complainant.
In the course of the proceedings, the administration of the estate of J. A. Helms was duly removed from the probate to the circuit court in equity. Gen. Acts 1915, p. 738; Code 1923, § 6478; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565; Hinson v. Naughter, 207 Ala. 592, 93 So. 560; Parker v. Robertson, 205 Ala. 434, 88 So. 418; Dent v. Foy, 206 Ala. 454, 90 So. 317; Henderson v. Henderson, 210 Ala. 73, 97 So. 353; Fowlkes v. Clay, 205 Ala. 523, 88 So. 651; Ex parte McLendon, 212 Ala. 403, 102 So. 696; Dent v. Foy, 204 Ala. 405, 85 So. 709; McKeithen v. Rich, 204 Ala. 588, 86 So. 377.
It is true that, if a homestead of grantor is less than the exemption allowed by law, the motive for the transfer is immaterial, as to third parties who may seek to enforce their rights by levy and sale. Burgin v. Hodge, 207 Ala. 315, 93 So. 27; Fuller v. Whitlock, 99 Ala. 411, 13 So. 80; Pollak v. McNeil, 100 Ala. 203, 13 So. 937. However, a careful consideration of the evidence impresses us with the view given expression in the decree that the deed from Helms to Hale was not delivered; that the legal title did not pass. It could not have the effect of passing the equitable title, since no part of the purchase price was paid. Ashford v. Prewitt, 102 Ala. 264, 14 So. 663, 48 Am. St. Rep. 37.
A certain part of the land is shown to have been the homestead of W. A. Helms for many years, and his motive, as to creditors, is beside the present issues of fact. The testimony of the grantee in the Hale deed shows that deed was not delivered, nor was the purchase price paid, nor possession taken thereunder. It was, therefore, not efficacious as to the legal or equitable title to the lands. The evidence supports the decree as to the other tract of land south of the river as to its joint ownership.
The decree of the circuit court in equity is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.