Opinion
8 Div. 458.
March 9, 1933.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
Griffin Ford, of Huntsville, for appellant.
Decrees fixing the rights of the parties are final and appealable. 2 R. C. L. § 21; 3 C. J. 432; Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; Adams v. Sayre, 76 Ala. 509; Suffolk v. Leiter, 261 Ill. App. 82; Tribune Co. v. Emery M. L. Co., 338 Ill. 537, 170 N.E. 772; Free v. Successful Merchant, 342 Ill. 27, 173 N.E. 753. The court has no power to grant affirmative relief on an answer unless it is prayed for or tire facts upon which the relief is sought are alleged in the answer. Code 1923, § 6550; Hendrix v. Southern R. Co., 130 Ala. 205, 30 So. 596, 89 Am. St. Rep. 27; Ashe-Carson v. Bonifay, 147 Ala. 376, 41 So. 816; Ketchum v. Creagh, 53 Ala. 224. A fraudulent grantee may be reimbursed provided she did not participate in the fraud. 27 C. J. 27; Tissier v. Wailes (Ala. Sup.) 39 So. 924; Caldwell v. King, 76 Ala. 149; Moore v. Tarlton, 3 Ala. 444, 37 Am. Dec. 701; London v. Anderson Brass Wks., 197 Ala. 16, 72 So. 359. The fraudulent grantee is chargeable with the rents. 27 C. J. 670; Gordon, Rankin Co. v. Tweedy, 71 Ala. 202; Gilkey v. Pollock, 82 Ala. 503, 3 So. 99.
Watts White, of Huntsville, for appellees.
Without a final decree, the Supreme Court is without jurisdiction to entertain an appeal from orders of a lower court in a pending suit. McKleroy v. Gadsden Co., 126 Ala. 184, 28 So. 660; Gibbs v. So. Ex. Co., 201 Ala. 506, 78 So. 860; Boshell v. Phillips, 207 Ala. 628, 93 So. 576; Woods v. Finney, 207 Ala. 160, 92 So. 264. It is the general rule that an appeal will not lie to the action of a court in the exercise of its purely discretionary power. 3 C. J. 468; McLaughlin v. Beyers, 175 Ala. 544, 57 So. 716; Ex parte Parker, 172 Ala. 136, 54 So. 572; Davis Wagon Co. v. Cannon, 129 Ala. 301, 29 So. 841. Until confirmed, a judicial sale is not complete, but under control of the court, which can exercise sound discretion as to it. Sayre v. Elyton Land Co., 73 Ala. 85. No motion was made to have sale confirmed, and the order of August 12, 1932, setting aside the sale was therefore not final and will not support an appeal. Hendrix v. Francis, 203 Ala. 342, 83 So. 66. Relief which is not inconsistent with relief sought by complainant may be awarded defendant on his answer alone, upon the principle that complainant must do equity when he seeks equity of the defendant. Sims, Ch. Prac. 422; 21 C. J. 667; Nolen v. East, 194 Ala. 440, 69 So. 826; Mooney v. Walter, 69 Ala. 75; Moore v. Crawford, 130 U.S. 122, 9 S.Ct. 447, 32 L.Ed. 878; McCormick v. Knox, 105 U.S. 122, 26 L.Ed. 940; McPherson v. Cox, 96 U.S. 404, 24 L.Ed. 746; Walden v. Bodley, 14 Pet. 156, 10 L.Ed. 398. The grantee in a fraudulent conveyance may be reimbursed where she did not participate in the fraudulent intent of the grantor. London v. Anderson Brass Works, 197 Ala. 16, 72 So. 359; Caldwell v. King, 76 Ala. 149.
This case has been here before. 224 Ala. 566, 141 So. 223. The decree of the trial court in setting aside the conveyance of the debtor, Buell, to his wife was affirmed. Afterwards, the trial court ordered a sale of the property, and on August 11, 1932, rendered a decree, the effect of same providing for the reimbursement of the grantee Mrs. Buell's $1,500 paid by her on the Giles mortgage which was a prior lien to the complainant's judgment, and the payment of the mortgage by Mrs. Buell was assumed as a part of the consideration for the conveyance made her by her husband. The decree of September 19, 1931, did not deal with this $1,500. It was mentioned in the opinion, but not the decree. Therefore, the decree of August 11, 1932, and the one the next day explaining and modifying the one of the 11th, was such a final decree as to the allowance of this $1,500 as will support this appeal and the motion to dismiss same is overruled.
On the Merits.
As we understand, the deed was set aside because the consideration was so inadequate as to constitute constructive fraud. There was no finding that the wife was guilty of actual fraud, fraud mala fides. Therefore, the trial court had the right to require the complainant to do equity by reimbursing the appellee the sum paid by her in reducing the amount of a prior lien on the property as a condition precedent to relief. "A fraudulent grantee cannot be required to account to the creditors of his vendor for any greater amount than the value of the property acquired by him under the transfer, and he may relieve himself from liability to the creditors of his grantor by paying to bona fide creditors a sum of money equal to the value of such property, or he may claim credit pro tanto for a smaller sum so paid." 12 R. C. L. § 148, p. 641. "If the grantee be innocent of any part in the fraud he may be allowed credit for any payments he has made in good faith." 12 R. C. L. § 150, p. 643, and note; Cottingham v. Greely Barnham Grocery Co., 129 Ala. 200, 30 So. 560, 87 Am. St. Rep. 58.
The appellee's answer set up the payment of a large part of the Giles mortgage debt, and the proof showed, and the trial court founds that she had paid $1,500. This was but defensive matter bearing on the consideration of the conveyance and was available under the answer as a condition upon which the complainant would be entitled to relief. It was not such affirmative relief as required a cross-bill.
The decree of the circuit court is affirmed. Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.