Opinion
6 Div. 185.
January 12, 1922.
Appeal from Circuit Court, Lamar County; Henry B. Foster, Judge.
Wilson Kelley, of Vernon, for appellant.
The court erred in the judgment rendered, under the evidence in this case. 197 Ala. 16, 72 So. 359.
O. E. Young and R. E. Redden, both of Vernon, and Ray Cooner, of Jasper, for appellee.
The burden was on Bettie Smith of showing an adequate and valuable consideration. 94 Ala. 394, 10 So. 334; 98 Ala. 263, 13 So. 822; 97 Ala. 376, 12 So. 234; 93 Ala. 70, 9 So. 372; 93 Ala. 332, 8 So. 804; 180 Ala. 105, 60 So. 261; 59 Ala. 283; 139 Ala. 293, 35 So. 877; 200 Ala. 541, 76 So. 867. There was nothing in the answer of the respondent to authorize the admission of the testimony which she sought to offer. 1 Daniell's Chancery, 711, 3 Bland (Md.) 392, 22 Am. Dec. 283; 29 N.Y. 252, 86 Am. Dec. 298; 7 Rich. Eq. 509, 62 Am. Dec. 402; 18 N.J. Eq. 132.
The bill of complaint seeks to set aside the conveyance in question on the ground that its recited consideration was simulated and fictitious; that is, that there was in fact no consideration at all.
The allegations of this bill — assuming, as the undisputed evidence shows, that complainants' claim against the grantor antedated the conveyance — imposed upon the respondent-grantee the burden of showing the payment therefor of a valuable consideration, and if that consideration was the satisfaction of an existing indebtedness due from the grantor to the grantee, it must be shown also that it was adequate for the land conveyed. London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 So. 359, and cases therein cited.
"In order to lift this burden, however, affirmative averments of the facts relied on as constituting the consideration is as essential as satisfactory proof of their existence. The respondents in order to be accorded the advantage of evidence offered in support of the bona fides of the transaction, should have alleged in their answers the facts showing good faith, the actual payment of an adequate consideration, how, when and in what the consideration was paid. * * * The answer must put in issue all the facts on which the defendant relies in bar of the relief sought by the bill, and evidence cannot be adduced of facts outside of these issues." Gamble v. Aultman, 125 Ala. 372, 376, 28 So. 30, 31; Freeman v. Stewart, 119 Ala. 158, 167, 24 So. 31; Noble v. Gilliam, 136 Ala. 618, 623, 33 So. 861; Robinson v. Moseley, 93 Ala. 70, 9 So. 372, wherein the rule is most fully discussed and stated.
In the face of this rule, the answer of the respondent Bettie Smith was wholly insufficient to authorize a contestation by her of the allegation of no consideration, and the trial court was compelled to disregard the testimony offered by respondents in that behalf, and to render a decree in accordance with the prima facie case made by complainants' allegations and proof.
The decree will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.