Houston v. Blackman , 66 Ala. 559 ( 1880 )

BBICKELL, C. J.

Bills of this character, filed by a simple-contract creditor of a deceased debtor, averring a deficiency of legal assets to satisfy his demand, to reach and subject property fraudulently conveyed by the debtor while in life, have been uniformly sustained in this court.—Reed v. Minell, 30 Ala. 61; Pharis v. Leachman, 20 Ala. 662; Watts v. Gayle, Ib. 817; Ellis v. State Bank, 30 Ala. 478; Quarles v. Grigsby, 31 Ala. 172; Halfman v. Ellison, 51 Ala. 543; Todd v. Neal, 49 Ala. 266. The theory on which the bill proceeds, in such cases, is that the fraudulent donee stands in the relation, and is chargeable as an executor de son tort; and he is allowed to make any defense which the debtor in life, or the rightful personal representative, could have made. Reed v. Minell, supra; Halfman v. Ellison, supra. The donee having this right, and as no decree is sought, or can be obtained, which will affect the rightful personal representative, though a proper, he is not a necessary party.—Inge v. Boardman, 2 Ala. 331. It is only when the assets in the hands of the personal representative, as a general rule, may be affected by the decree, that he is an indispensable party.— Story’s Eq. Pl. § 177.

At common law, a consideration was not essentially necessary to the validity of a deed. Thus, in Plowden it is said, arguendo, that, “ by the law of England, there were two ways of making contracts for lands or chattels ; the one by words, the other by writing ; and because words were often spoken unadvisedly, and without deliberation, the law had provided, that a contract by words should not bind, without consideration. But, where the agreement was by deed, there was more time for deliberation ; for which reason, deeds were received as a lien final to the party, and were adjudged to bind him, without examining upon what cause or consideration they were made.” — 4 Green. Cruise, title Deed, ch. 2, § 36. This was said of a feoffment; but elsewhere it is said, a consideration became requisite, even to the validity of a feoffment, as none could be implied. In deeds of bargain and sale, the expressiQn of any, the slightest consideration, — for instance, a pepper-corn even, — will support them, as between the parties. The only use and operation of the expression of a consideration, or the introduction of a clause reciting a consideration, is to prevent a resulting trust to the grantor, and to estop him from denying the making and effect of the deed for the uses therein declared.—Belden v. Seymour, 8 Conn. 304; Meeker v. Meeker, 16 Conn. 383 ; Grout v. Townsend, 2 Hill, N. Y. 554; Goodspeed v. Fuller, 46 Me. 141; Sowerby v. Arden, 1 Johns. Ch. 240; Graves v. Graves, 9 Foster, 29 N. H. 129.

_ Though a deed is valid and operative as between parties and their privies, whether founded on a consideration or not, if any is expressed, it may, for a want of a valuable consideration, be void as to the creditors of the grantor. When assailed by creditors whose demands were in existence at the time of its execution, the burden of proving a consideration, and a consideration which will free it from the imputation of being made to hinder, delay, or defraud creditors, rests upon the grantee, or those claiming under him. The recital of consideration in the deed, as to creditors, is not evidence — it is no more than the mere admission or declaration of the grantor.—McCain v. Wood, 4 Ala. 258; Br. Bank Decatur, 5 Ala. 9; McGintry v. Reeves, 10 Ala. 137; McCaskle v. Amarine, 12 Ala. 17; Falkner v. Leith, 15 Ala. 9; Dolin v. Gardner, Ib. 758; Hubbard v. Allen, 59 Ala. 283.

In Potter v. Gracie, 58 Ala. 308, it was said by this court : “ It is the settled law of this State, that a deed impeached by creditors, for fraud, actual or constructive, cannot be supported by evidence of considerations different from those alleged in it.—Murphy v. Br. Bank Mobile, 16 Ala. 90. It is, at all times, dangerous to relax the conservative principle of law, which declares that, when parties enter into a contract, and reduce its stipulations to writing, the written memorial is the sole expositor of the contract, and cannot, in the absence of fraud, be varied by parol evidence. Mistakes may occur, requiring a court of equity to intervene and correct, so that the contract may conform to the intention the parties proposed expressing. But, without fraud or mistake, as between the parties, the written contract is conclusive. When assailed by creditors, it must be taken, as to the parties to it, as it may be written. It cannot be supported by falsifying express recitals, which, it must be presumed, were deliberately made, and deliberately accepted.”

In Maigley v. Hauer, 7 Johns. 341, it was said by the court: “ It is a settled rule, that when the consideration is expressly stated in a deed, and it is not said also, ‘and for other considerations,’ you cannot enter into proof-of any other ; for that would be contrary to the deed. * * The same rule prevails in equity, according to the cases of Clarkson v. Hanway (2 P. Wms. 203), and of Peacock v. Monk (1 Vesey, 167.)”

In Wilkinson v. Wilkinson, 2 Dev. Eq. 377, it was said by Judge Gaston, considering this question : “ Written instruments are to be regarded as the authentic and permanent memorials, which the parties pass deliberately, appointed to testify to all, and forever, what they have done. Parol evidence is, in its nature, less satisfactory. It may be tainted with falsehood, perverted by ignorance, prejudice, favor, or mistake, and is liable to mislead, because of the weakness of human memory. It is not to be questioned, but that the general rule, which declares parol evidence inadmissible, to contradict, or substantially to vary the terms of a written instrument, obtains in a court of equity equally as in a court of law. The consideration upon which a deed is made, is an important part of the contract; and when it is distinctly declared, parol evidence is not more admissible to contradict, or substantially to vary that, than any other term upon which the parties have thus expressed their agreement.”.

The conveyances of lands between individuals, of most frequent use, are deeds of bargain and sale, or deeds operating as covenants to stand seized to uses. These conveyances derive their operation from the English statute of uses, a part of our common law, or from our own statute of uses, the same in substance.—Horton v. Sledge, 29 Ala. 478; Patton v. Beecher, 62 Ala. 588. A valuable, as distinguished from a good consideration, is necessary to support a bargain and sale; while a good consideration, is essential to support a covenant to stand seized. When either of these considerations singly is expressed in a conveyance of lands, to receive parol evidence that the other was the real consideration, would alter the character of the conveyance.

The conveyance now assailed was made by a husband, to his wife. The consideration is expressed upon its face in these words: “ as well for and in consideration of the love and affection which he has and bears towards the said Mattie B. Houston, as for the sum of one dollar paid to him cash in hand by the said party of the second part, the receipt whereof is hereby acknowledged.” The proposition is, by parol to show that the real consideration was the payment or security of a debt, exceeding four thousand dollars, owing by the husband to the wife, for moneys of her statutory separate estate, which he had received and converted to his own use. The admissibility of the parol- evidence is the decisive point of -the ease.

There can be no doubt, that a deed founded on, and expressing a merely nominal consideration, must be deemed voluntary as to creditors.—Ridgeway v. Underwood, 4 Wash. C. C. 133. In Murphy v. Br. Bank of Mobile, 16 Ala. 90, the conveyance was of slaves, by a husband, to a trustee for the sole and separate use of the wife, and recited that it was made “ for and in consideration of his anxiety to provide for his said wife a competent support in case of any future misfortune and embarrassment, and in and for the further consideration of one dollar, in hand paid.” When assailed as voluntary by creditors, it was proposed to support it by parol evidence that the the slaves had been originally given to the husband by the wife’s father, upon condition that he would settle them to the separate use of the wife, and that the deed was made in compliance with this promise. It was said by Dargan, J, speaking for the court: “ Here, the deed sets out the consideration on which it purports to have been executed, to-wit, the anxiety of the grantor to provide for his wife, and one dollar in cash paid. The proof would establish, that the deed was executed in conformity to the understanding entered into by Dorsey at the time the negroes were delivered to him. This is a consideration entirely different from that mentioned in the deed, and parol proof cannot be received to establish it without violating the well-settled rules of evidence.”

That case was in a court of law; but the rules of evidence are, as we have seen, the same in courts of equity, unless a reformation of the conveyance is sought because of fraud or mistake. Here there is an authority, decisive of this point, which has been unquestioned, and approved for more than thirty years. We are not at all inclined to depart from it. If it was not. apparent from the face of the deed, that the expression of one dollar as of the consideration was merely nominal, and introduced to give the deed the appearance ofjfa bargain and sale — if it was necessary to resort to parol evidence to ascertain whether that consideration was adequate — we do not say the parol evidence of an adequate pecuniary consideration would not be admissible. But that consideration being manifestly nominal, and therefore not changing or expressing any other than the merely good consideration of love and affection, the-parol evidence was inadmissible. Excluding it, the conveyance is purely voluntary, and void against the existing creditors of the grantor.

Let the decree of the chancellor be affirmed.