Carter, Kirtland & Co. v. Happel , 49 Ala. 539 ( 1873 )

B. F. SAFFOLD, J.

— The purpose of the bill, filed by the appellants as creditors, was to have set aside certain conveyances of real estate made by their debtor, Philip Happel, on the ground of fraud. The said Happel, being at the time in Jailing circumstances, did convey to E. Knight a house and lot in Greensboro, and a tract of land containing forty acres; the first, in alleged consideration of $10,000 paid; and the other, of $600 paid. On the same day he also conveyed a storehouse to Henry H. Happel arid William N. Knight, his son and son-in-law, in expressed consideration of $2,500 paid. This was about all of the property he had. The appellants were simple contract creditors without a lien, but their claims were admitted to be correct and unpaid. The answers of the defendants, required to be under oath, denied any fraud outright; and their testimony was directly to the. effect that E. Knight had paid for the property sold to him the price mentioned, and admitted to be adequate, in lawful money, derived from gold which he had hoarded during the war; and that the vendees of the storehouse had also paid money, derived from specified means of a legitimate character.

The only facts or circumstances calculated to cast suspicion on the completeness of the testimony on behalf of the defendants were, 1st, that by a verbal agreement, contemporaneous with the sale, the vendor (Happel) was to occupy the house and lot SQld to E. Knight, free of rent from the date of the sale, August 10, 1866, to the first of January ensuing, and during the same time to get wood from the tract of land without charge. 2d. A sale of the house and lot to Mrs. Happel, wife of his vendor, by E. Knight, in 1869, for $3,500. 3d. A claim set up in a cross-bill by William N. Knight, that after the original bill was filed, he bought the house and lot in question, at a sale by the sheriff under an execution issued on a judgment rendered in April, 1867, against the grantor, Happel, in favor of Robinson & Hudson, which judgment, he said, was a lien on that property; and the admission of Philip Happel and E. Knight that it was so, though the latter said he did not know of it when he made his purchase. This judgment was rendered nearly a year after the sale to E. Knight; and what is said of it by the defendants is claimed by the appellants to have proceeded from a consciousness on their part of the bad faith of their transactions, and a desire to fortify their fraud by another source of title.

The circumstances of fraud above stated are not sufficient to overcome the sworn answers of the defendants, and their positive testimony, in denial of any fraud in fact or intention. They give an account of the suspected transactions which cannot be overcome by merely suspicious circumstances. The deed of Happel for the house and lot was recorded within a reasonable time, and just before the term of his occupancy under the verbal agreement was to expire. This occupancy was no more than a badge of fraud, susceptible of explanation. This explanation is found in the evidence, that the consideration was adequate, and was paid; that the vendee, E. Knight, did not know of the insolvency of his vendor, Happel; the advantage or benefit reserved to the said grantor was inconsiderable and temporary ; and the time of year was unfavorable, either for procuring or disposing of a house and lot by rent. P. & M. Bk. of Mobile v. Borland, 5 Ala. 531; Ravesies v. Alston, Ib. 297; Blocker v. Burness, 2 Ala. 354; Henderson v. Mabry, 13 Ala. 713; Crawford v. Kirksey, and Harkins v. Bailey, June Term, 1872.

The sale of the house and lot to Mrs. Happel by E. Knight, in 1869, for a sum greatly less than he had given for it, and the admission by him and Philip Happel that the judgment of Robinson and Hudson was a lien on the property, are slight and inconclusive evidences of fraud. The judgment may have been a lien for aught that appears. Knight had a right to give Mrs. Happel the house if he chose. Because he sold it to her for about one third of what he had given for it, we cannot conclude that he did not pay the amount he swears he did. Philip Happel gives a very reasonable account of what disposition he made of the money received from him.

The cross-bill fails with the dismissal of the original bill.

The decree is affirmed.