Opinion
6 Div. 377.
March 8, 1934.
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
Murphy, Hanna, Woodall Lindbergh and Rossie Rogers, all of Birmingham, for appellant.
Where consideration recited in a deed is merely nominal, as $1 and in further consideration of love and affection, the conveyance is voluntary and void as to existing creditors of the grantor, when assailed by such creditors; and parol evidence cannot be received to show the conveyance is founded on a valuable consideration. 27 C. J. 527, 528, §§ 206, 210; 22 C. J. 1171, §§ 1566, 1568; Bibb v. Freeman, 59 Ala. 612; McKee v. West, 141 Ala. 531, 37 So. 740, 109 Am. St. Rep. 54; Pique v. Arendale, 71 Ala. 91; Potter v. Gracie, 58 Ala. 303, 29 Am.Rep. 748; Houston v. Blackman, 66 Ala. 559, 41 Am. Rep. 756; Code 1923, § 6565; York v. Leverett, 159 Ala. 529, 48 So. 684; London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 So. 359; Gilliland v. Hawkins, 216 Ala. 97, 112 So. 454; Lehman v. Meyer, 67 Ala. 396; McCrory v. Donald, 192 Ala. 312, 68 So. 306; Fidelity Mtg. Bond Co. v. Morris, 191 Ala. 318, 68 So. 153, Ann. Cas. 1917C, 952; Ogletree v. Tate, 225 Ala. 608, 144 So. 573. An existing creditor is one who has a claim or demand on a contract in existence at the time a voluntary conveyance is made, though the breach of contract, furnishing a cause of action, may occur after the execution of the conveyance. 27 C. J. 472, § 112; Foote v Cobb, 18 Ala. 585; Anderson v. Anderson, 64 Ala. 403; Fearn v. Ward, 65 Ala. 33; Jenkins v. Lockard's Adm'r, 66 Ala. 377; Keel v. Larkin, 72 Ala. 493; Bragg v. Patterson, 85 Ala. 233, 4 So. 716; Smith v. Young, 173 Ala. 190, 55 So. 425; Cortner v. Anderson, Clayton Co., 225 Ala. 575, 144 So. 443.
Taylor Higgins, of Birmingham, for appellees.
It is a well-settled general rule that parol evidence is admissible to show the true consideration of like kind as expressed in the deed, that it is greater or less, but evidence going to show a consideration of a different kind is not admissible. Union B. T. Co. v. Royall, 226 Ala. 670, 148 So. 399; Gilliland v. Hawkins, 216 Ala. 97, 112 So. 454; Savage v. Milum, 170 Ala. 115, 54 So. 180; Zaner v. Thrower, 203 Ala. 650, 84 So. 820; Halsey v. Connell, 111 Ala. 221, 20 So. 445; Harris v. Geneva M. Co., 209 Ala. 538, 96 So. 622; Harraway v. Harraway, 136 Ala. 499, 34 So. 836. A debtor may by sale made in good faith devote his entire property to the payment of one creditor to the exclusion of others. Goetter v. Norman, 107 Ala. 585, 19 So. 56; Fed. Land Bank v. Rowe, 222 Ala. 383, 133 So. 50; London v. G. L. Anderson Brass Works, 197 Ala. 16,
72 So. 359. Where a grantor receives a benefit, or the grantor suffers detriment, as the consideration of the conveyance, the consideration is valuable, not good merely. Pippin v. Tapia, 148 Ala. 353, 42 So. 545. Under the facts this conveyance was not fraudulent as against appellant, and the decree should be affirmed. Wertheimer v. Sig. Sol. Freiberg, 176 Ala. 165, 57 So. 708.
A conveyance of lands from parent to child on a recited consideration of $1 in hand paid, the receipt whereof is acknowledged, and the further consideration of love and affection, is construed as a voluntary conveyance, supported by a good, rather than a valuable, consideration. It is, therefore, void on its face against existing creditors of the grantor. On a bill filed by an existing creditor of the grantor to set aside such conveyance and subject the lands to the payment of his debt, parol evidence is inadmissible to prove a valuable consideration, such as an indebtedness owing by the grantor to the grantee.
This has been the long-settled law in Alabama, and we are not now disposed to review or bring in question the grounds on which such rule is rested. Houston v. Blackman, 66 Ala. 559, 41 Am. Rep. 756; London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 So. 359; Murphy, Trustee, etc., v. Branch Bank at Mobile, 16 Ala. 90; Felder v. Harper, 12 Ala. 612; Potter Son v. Gracie, 58 Ala. 303, 29 Am. Rep. 748; York et al. v. Leverett, 159 Ala. 529, 48 So. 684; Folmar et al. v. Lehman-Durr Co., 147 Ala. 472, 41 So. 750; Gunn v. Hardy et al., 130 Ala. 642, 31 So. 443; Gilliland v. Hawkins, 216 Ala. 97, 112 So. 454; 27 C. J. page 528.
The status of an existing creditor is determined by the date the debt is incurred, not the date of maturity. We do not construe the trial court's opinion as opposed to this elementary rule. But, in considering the evidence offered over the objection of complainant touching an indebtedness due from grantor to grantee as the consideration for the deed, and in basing his decree on the fact that no actual fraud was proven, there was error to reverse. Code, § 6565.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.