Moog v. Farley , 79 Ala. 246 ( 1885 )

CLOPTON, J.

The record only presents for revision the decisions of the chancellor on questions of fact; and in considering them, we shall observe the settled practice, that to authorize a reversal in such case the evidence must clearly show that his conclusions are erroneous. In the investigation, the assignments of error founded on the rulings or objections to testimony, not insisted on in the argument, will be treated as waived. We shall also dismiss from consideration, other than as they may be regarded as affecting the credibility of Owen Farley as a witness, his alleged fraudulent practices, by misrepresentations or otherwise, to induce strangers to this suit to become indorsers on his paper, or to obtain other favors, which do not consist of fraudulent dispositions of his property, are prior to the transactions in controversy, and of which it is not shown the other defendants had any knowledge, or participated therein ; and his declarations, made after the execution of the conveyances attacked, will not be regarded for the purpose of impeaching them.

One of the purposes of the bill is, to subject to complainant’s demands the lots on the south side of Government street in Mobile. These lots were purchased from John F. Williams, in March, about two months after the open failure of Owen Farley, and the deed was executed to John E. Farley. There is no pretense that the property was, at a time anterior to the purchase, owned by Owen Farley. Its condemnation is sought, on the claim that the purchase-monej' was-furnished by him, and that.it was bought for his benefit. If such be the fact, it is liable to complainant’s debt; but, under the circumstances, the burden of establishing this fact is on complainant. The uncontradicted evidence of several witnesses shows, that the negotiations for the purchase were carried on by John E. Farley, who stated, at the time, that he was using the money of his mother, and was purchasing, the property for her; but

that, by her consent, the conveyance was to be made to him, to aid him in carrying on his business, to which he also testifies as facts. Because of some defect in the certificate of acknowledgment, the deed was sent back to St. Louis to be perfected. In the meantime, a part of the money was left with his attorney, and the balance was deposited in a banking-house in Mobile. On the return and delivery of the deed, the property was paid for with the check of the attorney for the amount left with him, and the check of John E. Farley for the amount deposited in bank. Much of the money consisted of fractional currency, was musty, and had the appearance of having been withdrawn from circulation and kept for some time. It is unreasonable to suppose that Owen Farley, who had been engaged in mercantile business for fifteen years preceding, in carrying on which he constantly needed money, and when he was keeping deposit accounts with one or more banks, would have withdrawn that amount from his business, and hoarded and kept it in some private place unemployed. The argument is the insufficiency of the proof to show that the mother had money, or the means of acquiring it; and it is insisted that therefore we should presume it was the money of either Owen Farley or of John E. Farley. In the absence of evidence showing it vpas Owen’s money, and against the opposing testimony of witnesses, we are not authorized to presume the fact. To justify a presumption of fraud, circumstances must be proved on which to found the inference. Unless the purchase was made witli his money, his creditors are not injured, and have no right to complain. It matters not to them from what other source, or in what other manner, the mother acquired the money. Her removal into the house as a residence, and the occupancy of the lower story by John E. Farley as a store, tend to corroborate his statements, and indicate the purposes for which the property was purchased. And, when the complainant offers no evidence to show that the money used was the debtor’s, the burden of proof being cast on him, it will be presumed, for the purposes of this case, that the money was not his.—Lehman Bros. v. McQueen, 65 Ala. 570.

The bill further assails as fraudulent a conveyance of other lots in Mobile to Bryant Farley, and conveyances of land and a stock of goods to John E. Farley. A circumstance applicable to all the transactions is relationship, the parties being brothers. While the earlier cases class relationship among the badges of fraud; the later and. better opinion is, that it is a circumstance to he considered and weighed in connection with the other circumstances of the transaction. What are denominated badges of fraud, do not conclusively establish it. They are evidence of a fraudulent intent, which may be rebutted and explained, but from which, if unexplained, fraud may be, and sometimes should be inferred. The explanatory proof must be clear and satisfactory — more convincing than the evidence of the badge of fraud, as drawn from general observation and experience. A transaction between relatives will be more zealously scrutinized, than if between strangers; yet relationship is not sufficient, of itself, to mark a transaction as fraudulent; and “ a bona fide creditor, though he be closely allied to his debtor, and the latter insolvent, may take property, at a fair price, in payment of his debt, and his title will be unassailable.”—Hubbard v. Allen, 59 Ala. 283; Bradley v. Bagsdale, 64 Ala. 558. When the creditor proves the existence of his debt at the time of the sale, the onus is then cast on the purchaser to show the payment of an adequate and valuable consideration. Upon payment of such consideration being shown, an inquiry as to the intent becomes material, in respect to which the burden is shifted on the complaining creditor, the payment of ■& valuable and adequate consideration repelling the presumption of fraud, that would otherwise arise.

In respect to the transaction with Bryant Farley, the evidence shows that, in June, 1883, he loaned Owen twelve hundred dollars, for which the latter gave a due-bill. About January 8, 1884, he called on Owen for payment of the due-bill, stating to him that he desired to purchase real estate, such investment being more profitable than loaning his money or keeping it in a savings-bank. It is shown by his bank-book that he then had over seventeen hundred dollars on deposit in the savings-bank. Owen was unable to pay him, and proposed to sell him city property. After some negotiation as to the price, he purchased the lots in controversy, at twenty-seven hundred dollars, and paid him on the same day the due-bill and about thirteen hundred dollars in cash, as Owen said he needed some money ; and the balance of the purchase-money two or three days afterwards, when .the deed was delivered. The cashier of the bank testifies, that Bryant had the amount mentioned on deposit, and to his having drawn it out on that day. His ability to purchase is made apparent, and the payment of a valuable and adequate consideration is sufficiently pi'oved. It thus was incumbent on the complainant to show, not only the fraudulent intent of Owen, but also Bryant’s knowledge of such intent, or his participation therein. It is not shown that he had anj' actual knowledge of his brother’s financial embarrassment, or of any indebtedness, other than the amount due him. It may be conceded, that their relationship, the customary way of carrying on such mercantile business, and the information which he received from his brother of bis inability to pay, and' his need of money, were sufficient to put him on inquiry. If there was an absence of evidence as to the application of the money paid, or if notice had been brought home to Bryant of the intention of his brother to prefer creditors in the future, we would be inclined to hold the sale fraudulent as against unpreferred creditors, on the authority of Lehman, Durr & Co. v. Kelly, 68 Ala. 192. But it is shown that the money was' applied to the payment of debts, and there is no evidence that Bryant had any notice, or reason, to suspect any necessity to prefer creditors, or his brother’s inability to pay his indebtedness in full. He was regarded in the business community as solvent, up to the day of his failure.

It is insisted that-the application of the money is only "proved by Owen Farley. In answer to an interrogatory, he gives the names of the creditors whose debts were paid, one of them being a note on which complainant’s firm was an indorser ; and thus furnishes the names of witnesses, by whom the alleged payments could be disproved, if his testimony was false. — Eskridge v. Abrahams, 61 Ala. 134. Such testimony, uncontradicted after means and opportunity afforded, produces a reasonable conviction that the money was applied to the ex-tinguishment of debts justly due; and such application is inconsistent with participation by Bryant in an intent to defraud creditors. Where the proceeds of sale have not been diverted from the payment of debts, but have been honestly applied to the liabilities of the debtor, the transaction will not ■be pronounced fraudulent. When the property is thus appropriated, other creditors can not complain.—Clements v. Moore, 6 Wall. 299.

The land on the Bay she]l-road was purchased by Owen from Mrs. Thompson, in 1879. Owen and John both testify, that the purchase was made at the instance, and for the benefit of John, and that the amount of the purchase-money was paid by a credit on Owen’s indebtedness to John for his services as clerk. The deed was taken in his own name; on discovering which, John called on him for a deed; which Owen promised to execute, but postponed it from time to time, until November, 1883, when the deed in question was made, and acknowledged before a qualified officer on the day of its execution. It appears from their own, and the testimony of other witnesses, that John went into possession in 1879, soon after the purchase, improved the place, planted orange and pecan trees, which he purchased the same year, has occupied and cultivated it ever since, sold several hundred dollars worth of wood therefrom, and has enlarged it by purchases of adjoining lands. If it had been a sale of the land in November, 1883, the consideration recited would have been a material circumstance to be considered; bnt, as it was not a sale — only the consummation of what ought to have been done several years previously — its materiality is destroyed, and it is not sufficient to stamp the conveyance as fraudulent. On the evidence, we are forced to the conclusion, that John was the beneficial owner of the land before the debt of the complainant was contracted, and that Owen, in conveying it to him, only did what a court of equity, under the circumstances, would have compelled him to do.

The character of the sale and transfer of the stock of goods to John E. Earley must be determined on other principles, to some extent. We have found great difficulty in attaining a satisfactory conclusion as to this transaction. As growing out of the right of a debtor to prefer his creditors, we have held, in several late cases, that an absolute sale of his property by a debtor, though insolvent, to a creditor, in payment of an antecedent debt honestly due, the amount of the indebtedness being commensurate with the value of the property, and no benefit reserved to the debtor, will be maintained, though the debtor may have been moved by a fraudulent intent, and provided the creditor does no more than is necessary to procure the payment of his debt. In such case, the creditor’s knowledge of the debtor’s insolvency is immaterial. The inquiries are addressed to the honesty of the indebtedness, its amount as commensurate with the value of the property, and the reservation of a benefit to the debtor.—Hodges v. Coleman, 76 Ala. 103; Meyer v. Sulzbacher, Ib. 120; Levy v. Williams, ante, 176.

The claim is, that Owen Earley, being largely indebted to John for his services as clerk, sold him the goods in satisfaction of the indebtedness. The rendition of the services, and their value, are proved by several disinterested witnesses, who are engaged in business in Mobile. The same witnesses also prove, that he was competent, diligent, and attentive to business, and is an unmarried man, of steady and economical habits. The amount of his compensation was not fixed, but he was to be paid the reasonable value of his services. He boarded in the family, and, when he needed money for other expenses, applied to Owen, who supplied it. No settlement was ever had between them until January 10, 1884. No account with John was kept on the books; no memorandum of the settlement was preserved; and there is no evidence of the amount of compensation allowed, nor of the deductions madeon account of money received or advanced' for him. On the settlement, it was ascertained and agreed that Owen was indebted to him in the sum of $8,000. In payment and discharge of this indebtedness, Owen sold him the stock of goods, which were valued at $6,000; but, as subsequently ascertained, were not worth so much. Of this, however, the other creditors can not complain. The indebtedness being established, it is not a matter of grievance to them, that property of value less than its amount is taken in full satisfaction, and a release of the entire debt is is given.—Chamberlain v. Dorrance, 69 Ala. 40.

The explanation given of the unusual circumstance of rendering services for fifteen years without an understanding as to definite compensation, and without any settlement, is, that Owen had promised him an interest in the business, and that repeated requests for a settlement were made, which was as repeatedly promised and postponed by Owen, but always admitting he was largely indebted to John. • In October, 1883, John quit the employment of Owen, because of his failure to obtain a settlement, remained away about four weeks, and then returned, on assurances that a settlement should be made. It is said that this is only' proved by the brothers. John, in his evidence, names two individuals, who, as he states, were present, and knew of the agreement on which he returned. It is true, the testimony of these persons to the same fact would have corroborated his ; but, so far as appears, they were accessible to examination by the complainant, if they would disprove his evidence. Witnesses, swearing falsely', do not usually name other persons, who are accessible, and can be used to disprove their statements.

We do not concur with counsel, that the only reasonable explanation of the circumstances is, that John was a partner. All the evidence tends to show, that he acted in the capacity of a clerk, being the principal salesman. It doe's not seem unreasonable, that, in anticipation of an interest, he was willing to permit the amount due him to remain in the business; and it may be that he submitted to the repeated postponements of a settlement, under the influence of this promise, and from his confidence in his brother. Neither is it unreasonable, that an unmarried man, of a saving disposition and economical, should accumulate eight thousand dollars in the course of fifteen years, whose services are as valuable as his are proved to have been. If the usual and average expenses in Mobile, of such a person as the witnesses represent him, exceeded fifteen dollars per month, exclusive of board, the fact was susceptible of proof. It is not shown that, during the time, he made any investments, except the purchases of lands on the shell-road, which aggregated about one thousand dollars; and five hundred dollars of this, he states, were borrowed from his mother, in October, 1882; but he gives no explanation why he was borrowing money, when his brother was so largely indebted to him.

In Pyron v. Lemon, 67 Ala. 458, we held, that a sale of lands, by an insolvent father to his sons, about the time they attained their majority, will not be upheld, on their evidence that the land was paid for in services rendered by them, without stating the kind of labor, or its value by the month or year, In Hubbard v. Allen, 59 Ala. 283, it was held, that where the alleged consideration of a conveyance, by an insolvent father to his daughter, was money given her as birth-day presents, which the father used, no memoranda or account of which was kept, an estimate of the aggregate amount, on the father becoming insolvent, for which he gave his note, the amount having been estimated from memory, without any data, and without recollection of the years in which the presents were made, or of the sum given at any one time, is too vague and uncertain, and is not the clear and full evidence which the law requires, to sustain the conveyance against a creditor whose debt is established. In each of these cases, the conclusion of the chancellor was against the validity of the conveyance. In the present case, the kind of services, their value, and the period of time during which they were rendered, are sufficiently proved. The uncertainty does not consist in the mode of ascertaining the primary amount of indebtedness, or in the data from which to estimate it, but in the estimate of the sum of abatement by credits or payments, no account having been kept. The evidence, in respect to its sufficiency, does not fall within the rule, as held in either of the cases cited. When the creditor has satisfactorily established the existence of an indebtedness, and its original amount, he will not be held to show, with the same degree of certainty, the items or amount of credits to which the debtor is entitled. Where a settlement has been bad, and credits allowed, in the absence of evidence tending to show that the debtor should have received credits other than those admitted, the creditor will not be required to prove the non-existence of other payments.

Under all the circumstances, some of which are calculated to .excite suspicion, and to call for strict scrutiny, it must be conceded, that the evidence of the amount of indebtedness claimed is not as satisfactory and convincing as is desirable, or as it might have been made. The precise sum remains, to some extent, in uncertainty. A reversal, however, involves an affirmation that dhe circumstances, without other contradictory proof, are clearly sufficient to' overcome the positive statements of witnesses, some of whom there is no attempt to impeach. If the proof of the primary indebtedness' were of the same character as that relating to its reduction by way of credits or payments, we would not hesitate to declare that the debt had not been sufficiently established. But, whatever might be our conclusion if we were deciding the question originally, we are unable to say, after careful examination and consideration, that the conclusions of the chancellor are clearly erroneous.

Affirmed.