Martin v. Berry, Demoville & Co. , 116 Ala. 233 ( 1896 )

McCLELLAN, J.

The burden was on Williams, it being alleged and proved that complainants’ debt against Martin antedated the conveyance of the latter to him, and that Martin was insolvent to the knowledge of Williams, to both aver in his answer and prove by clear and convincing evidence a valuable and adequate consideration passing from him to Martin for the land, in what it consisted and how it was paid. — Robinson v. Moseley, 93 Ala. 70. In recognition and attempted discharge of this burden so far as averment is concerned, Williams set up in his answer that at the time of the conveyance to him he had no knowledge or notice of Martin’s indebtedness to the complainants, that Martin was then — July 10, 1891 — indebted to him on a decree rendered by the prebate court in the sum, principal and interest, of $467.17; the decree without interest being for $383.43 ; that he was not at Tuseumbia, the county seat, when he purchased the land and hence did not know the precise' amount of the decree, “but that he agreed to give him a very liberal price for the land, and gave him much more than his interest therein was worth. He agreed to give him and did give him for said interest the amount said James R. Martin owed him with the interest from the 8th day of February, 1889, amounting to $547.17, and his three notes as follows : One for eighty dollars, due January 1st, 1892, now owned by Williams & Turner, one for one hundred and seventy dollars, due 1st January, 1893, now owned by O. F. Turner, and one note for one hundred and seventy dollars, due 1st January, 1893, which last note respondent has since paid, and also paid him forty dollars in cash ; not knowing,” the answer proceeds, “at the time said deed was made the precise amount due from said James R. Martin to respondent, the consideration in said deed was put at one thousand dollars, so as certainly to embrace not only the notes and cash the respondent paid him, but also all of said indebtedness.” Such is the answer. Now as to the evidence offered to support its averments : It is shown by the respondent that the land was worth not exceeding five hundred dollars, so that if the averments of the answer be true, the respondent paid nearly double its value, and a sum in cash and notes nearly equal to its value, exclusive of Martin’s indebtedness to him. But the decree in favor of respondent against Martin is shown by the evidence of the former and the transcript from the probate record to be for an amount just double that alleged in the answer, or $766.43 instead of $383.43. This decree, with interest to the time of respondent’s alleged purchase from Martin, would have amounted to over one thousand dollars, and when to this is added the cash and note payments amounting to $460, it would appear that Williams gave nearly $1,500 for land worth not more than $500. The variance between the averment of the answer and the evidence offered for respondent as to the amount of the decree against James R. Martin, is nowhere either in the evidence or in argument attempted to be explained or palliated. We call attention to it here merely as one of the sinuosities of the respondent’s defense, though it might possibly be given a wider operation in the case as a fatal variance between the affirmative averments necessary to be made in the answer and the proof. But whether the decree was for the one amount or the other, it is clear, both on the answer and the proof, that the respondent paid Martin about the value of the land in cash and notes and in effect presented him with the amount of the decree. Williams was Martin’s stepfather, had raised him and regarded and treated him as his own child. Williams told Weakley that Martin was indebted to him in some amount, or might be, for board, lodging, tuition, etc., but that his expenditures on Martin were regarded by him as those, of'a father for his child, and he did not claim or intend to receive any remuneration from him. This idea is fully borne out by this land transaction. He substantially paid Martin full value for the’land in money or its equivalent and at the same time without any consideration therefor entered satisfaction of the decree against him which is alleged to have represented respondent’s expenditures for Martin as in loco pcirmtis. Williams swears that when he made this purchase from Martin he did not know that the latter was indebted to complainants ; but his answer sets forth facts which substantially demonstrate that he had notice of such indebtedness, and the evidence of Weakley, which is entitled to much more credit than that of Williams, as well because of its inherent reasonableness and his want of interest in the result of this-suit as because of the inherent weakness of Williams’ testimony, his failure to remember facts which ought to be fresh in his mind, his naked and unexplained denials, his point blank refusals to answer several pertinent questions and his interest in the result, clearly shows that Williams knew that Martin was indebted to complainants, that the debt was contracted on the faith and credit of Martin’s ownership of this land, and that complainants looked to this property as the source of its payment. On these facts, together with the relation that existed between Williams and Martin, Williams’ expressed purpose to collect nothing of the indebtedness from Martin to him evidenced by the alleged decree, a purpose which he substantially effectuatecL in the land transaction by paying Martin the value of the land in money or its equivalent over and above the amount of the decree, so that there was really no consideration for the satisfaction of the decree, the time at which the land was conveyed to Williams-being after the maturity of Martin’s first note to complainants, and shortly before the maturity of the second, the fact that Martin had no other property, the dense cloud of suspicion which is cast over the whole transaction by the variance between the answer and evidence as to the amount of the alleged decree and the circumstances attending the alleged rendition and entry of the decree, and the fact that there is manifest reluctance on the part of Williams to make a full, free and fair disclosure of the whole' transaction, the conclusión is fairly and satisfactorily deducible that Martin conveyed the land to Williams and Williams accepted the conveyance for the purpose of hindering, delaying and defrauding the complainants in the collection of their debt from Martin.

Upon the foregoing considerations, to which others might be added, we concur with the chancellor, that the conveyance of Martin to Williams is fraudulent and void ; and his decree is affirmed.

Affirmed.