Moog v. Barrow , 101 Ala. 209 ( 1893 )

COLEMAN, J.

Barrow et al., creditors of Bernard Moog, filed this bill attacking certain conveyances of land as fraudulent and void, made by Bernard Moog and wife to Haas & Hemly, and subsequently by Haas & Hemly to the wife of Bernard Moog. The deeds are in' terms absolute. The consideration, as expressed in the conveyance from Moog and wife to Haas & Hemly, was the payment of a past debt due them by Moog, and that expressed in the conveyance to the wife of Moog was a cash consideration of five hundred dollars. The bill shows that complainants were creditors at the time of, and prior to, the execution of these conveyances, and avers that the deed to Haas & Hemly was intended to operate only as a mortgage to secure the indebtedness of Moog to Haas & Hemly, and that the conveyance to the wife of Moog was intended as a fraud; that the money expressed as the consideration was furnished by Moog himself, and was in fact payment of the debt, for which the conveyance was intended to operate as a mortgage security.

The answer consists of only two paragraphs to these important allegations of the bill. The first is: “That they and each of them deny the allegations and charges set forth, in each paragraph of complainant’s said bill of complaint, from paragraph one to paragraph six, both inclusive.” This is thé only response of Bernard Moog to the bill.' By a second paragraph the' wife answers that she purchased the property ‘1 in good faith and parted with value by paying money therefor, without notice of complainants’ alleged equity.” The charge of complainants that her husband conducted the entire transaction, and furnished to her the money, and that the payment was in satisfaction of the mortgage debt is not denied or referred to in her answer.

An answer is not sufficient that states a general denial of the matters charged. There should be- a clear and distinct response to each averment of the bill. — Story Eq. PI., § 852 ; Daniels Ch. Pr. § 844; Savage v. Benham, 17 Ala. 131. When a material matter is charged in the bill, which prima facie is within the knowledge of the defendant and he fails to deny it, it must be considered as admitted. — Smiley v. Siler, 35 Ala. 88; Grady v. Robinson, 28 Ala. 289.

But aside from these principles the proof is clear, that the deed to Haas & Hemly was intended to operate only as a mortgage. The grantee Plemly testifies, that on settlement with Moog, at the time of the reconveyance to Moog and wife, he accounted for all the rents collected from the land, and charged Moog with the taxes, that more than once, persons offered to purchase the land from him, and on each occasion he referred the proposition to Moog, who declined to accept the offer, and»that Moog always as to him claimed the land, subject only to the payment of the debt due Haas & Hemly. The real value of the land, shown to be much more than double the amount of the consideration, is competent evidence to be considered in this connection. Neither Moog nor his wife were examined as witnesses in the case. We do not doubt the correctness of the conclusion of the chancellor from the facts introduced in evidence.

It is insisted that there is a variance in the probata and allegata, which is fatal to any relief, in this, that the bill charges that Moog the defendant owned the land in fee, and the proof shows, that the fee was in A. & B. Moog, and we are referred to the cases of Floyd v. Ritter, 56 Ala. 356, and Webb v. Crawford, 77 Ala. 440, in support of the contention. Neither of these cases have any application to the question under consideration. Moog conveyed by deed with warranties the whole land to Haas & Hemly. Mrs. Moog claims only under title derived from her husband through Haas & Hemly. A. Moog is not a party to the bill. Mrs. Moog does not rely upon title from A. & B. Moog, but title from Haas & Hemly, who acquired title from B. Moog only, the husband. This is the title that is attacked as fraudulent. This is the title that Mrs. Moog is called upon to defend. There is no variance in the allegata and probata so far as the parties to the bill are concerned. There is no error in the record.

Affirmed.