Opinion
4 Div. 766.
April 11, 1918.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Farmer Farmer, of Dothan, for appellants. Martin Crawford, of Dothan, and Steiner, Crum Weil, of Montgomery, for appellees.
On the former appeal in this cause (Dothan National Bank v. Moore-Handley Hdw. Co., 76 So. 317 ), it was ruled that the demurrers of the Houston National Bank and the Dothan National Bank were properly overruled by the court below; and this appeal presents for consideration the sufficiency of the averments of the bill as amended, as to the alleged fraudulent conveyance by the debtor, W. T. Middlebrooks, to his daughter, L. M. Middlebrooks, of date May 8, 1912, purporting to convey certain real estate and other property therein described.
As we construe the amendment filed in the cause in connection with the allegations of paragraph 8 of the original bill, the bill as amended in substance and effect charges that the deed from W. T. Middlebrooks and his wife, E. D. Middlebrooks, to their daughter, L. M. Middlebrooks, was without consideration, and was executed with the intent and for the purpose of hindering, delaying, and defrauding the existing and subsequent creditors of said W. T. Middlebrooks, and for the purpose of placing the property of the said W. T. Middlebrooks beyond the reach of both his existing and subsequent creditors; that the consideration recited in said deed of "one dollar and other good and valuable consideration" was but a pretended consideration; that the daughter, L. M. Middlebrooks, knowing the said deed was made in fraud of the creditors of her father, fraudulently withheld the same from record from the date when it purports to have been signed until April 7, 1914, and that she participated in said fraud, and conspired with her father to withhold the same from record; that she permitted the said W. T. Middlebrooks to continue in the active management of said land, and to use and control the same as his own, said deed not being filed for record until after the commencement of the suits brought by the original complainant. The bill, therefore, as amended, not only shows that the deed sought to be set aside was a voluntary conveyance, executed with fraudulent intent both as to existing and subsequent creditors, but that the grantee knew of the fraud, participated therein, and conspired with the grantor to withhold the deed from record — permitting the grantor to remain in the possession of the property as the ostensible owner. The bill as amended was not subject to the demurrer interposed thereto. Mathews v. Carroll, 195 Ala. 501, 70 So. 143; McGhee v. Bank, 93 Ala. 192, 9 So. 734; Lehman v. Van Winkle, 92 Ala. 443, 8 So. 870; Williams v. Spragins, 102 Ala. 424, 15 So. 247.
E. D. Middlebrooks, the wife of respondent W. T. Middlebrooks, joined her husband in the execution of the deed to L. M. Middlebrooks, and H. E. Middlebrooks joined his wife in the execution of the mortgages to the two banks, all for the alleged purpose of hindering, delaying, and defrauding the creditors of said W. T. Middlebrooks.
One of the assignments of demurrer attacks the bill for a misjoinder of parties respondent, in that said E. D. Middlebrooks and H. E. Middlebrooks are made parties respondent, and separate demurrers were interposed by each of the respondents. While these respondents may not have been necessary parties, yet we are of the opinion, under the facts set up in the bill, they were at least proper parties, and that the demurrer taking the point of misjoinder of parties respondent was properly overruled.
The decree of the court below will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.