Murray, Dibbrell & Co. v. Heard , 103 Ala. 400 ( 1893 )

COLEMAN, J.

The appellants, creditors of-George P. Heard, filed the present bill in the chancery court, and sought to set aside and annul certain conveyances of land and a bill of sale executed by the debtor to Mrs. A. A. Heard and William Q,. Tillman, the former being the wife and the latter the brother-in-law of the debtor. There were separate conveyances and for separate property to each of the grantees. The proof shows that the claims of the complainants were bona Me, and in part were past due, before the execution of the several conveyances and bill of sale. The defense set up was that the property was sold and received in absolute payment of pre-existing debts. The fact that complainants’ debts were owing prior to the date of the execution of the grant, cast the burden of showing the bona fides of the consideration, and that the property was taken at its fair value, on the defendants. There is a statement in the case of Moore, Marsh & Co. v. Penn & Co., 95 Ala., top of page 204, to the effect that the purchasing creditor must ‘‘also show that no benefit was reserved to the debtor,” which is calculated to mislead. This burden is not on the purchasing creditor. The true rule is declared in Roswald v. Hobbie, 85 Ala. 73 ; Pollak v. Searcy, 84 Ala. 259 ; Dollins v. Pollock, 89 Ala. 351; Smith v. Collins, 94 Ala. 394; Chipman v. Glennon, 98 Ala. 263. In the examination of the testimony introduced by the respondent, the relation of the grantees to the debtor is a fact to be considered, in determing the bona fides of the transaction between them and the truth of their statements.

We have examined the testimony with great care and find from the testimony of disinterested parties that the property was sold at a price not less than its real value. The brother-in-law, Tillman, has established the bona fides, and amount of his claim, by the testimony of disinterested witnesses, and by evidence which leaves no room to question its correctness. His claim alone, according to the great weight of the evidence, was a fair equivalent for the property conveyed and sold to both grantees.

Mrs. A. A. Heard has established her claim, by her own testimony, and that of Tillman, her brother, and her husband, the defendant debtor. She has gone into details, as to her resources, her means of obtaining the money, she claims to have loaned her husband. ' She testifies a,s to her landed interest, where it is situated, the annual rents received from this source, and by whom and when paid, also as to her ownership of the livery stable, the evidence of such ownership and how long she has owned it, from whom obtained and how paid for. The complainants offered no evidence in rebuttal of the facts testified to by her and her brother in regal'd to her pecuniary abilities. This court would be coinpelled to reject, without any reason save that she was the wife of the debtor, testimony which the complainants themselves did not pretend to meet, before we could conclude that she had not fully discharged the burden resting upon her. The law is well settled .that an insolvent or failing debtor may, under proper conditions and limitations, prefer certain creditors in the payment of the debts due them. The proof brings the casé fairly within the principles of law decided in the case of Pollock v. Meyer, 96 Ala. 172, and the authorities there cited.

Appellants’ counsel have submitted no argument and filed no brief in the case in this court, but wc have considered the questions raised by the assignments of error.

There is no error in the record.

Affirmed.