Guyton v. Terrell , 132 Ala. 66 ( 1901 )

McCLELLAN, C. J.

— This bill is exhibited by Susan M. Terrell, a judgment creditor of John S. Guyton and N. B. Guyton, against said Guytons and several other persons who are alleged to be fraudulent grantees, etc., of property and assets of the defendant in judgment, etc.; and it is also alleged that said Guytons, or John S. have property and effects subject to the satisfaction of said judgment, which they conceal, etc. It prays for the subjection of the property and assets so fraudulently conveyed, and for discovery of property, etc., concealed, and its subjection to complainant’s judgment, etc. The affidavit to the bill was. made by. one J. H. Miller, and it is therein affirmed that said Miller “is the agent of Mrs. Susan Terrell, the complainant in the foregoing hill, and duly authorized to act as such agent in this matter; that the complainant, Susan'M. Terrell, is a non-resident, and resides now in the State of Texas; and further that affiant, of his own knowledge, knows that the facts alleged in the original bill and the amendments thereto are true, as therein stated.” Some of the facts alleged in the bill are stated as upon the knowledge of the complainant; i. e., positively and not upon information and belief. This hffidavit positively affirms the truth of such facts as upon affiant's knowledge. Other facts are alleged thus: “Complainant is informed and believes, and alleges the fact to be,” etc. The affidavit is an affirmation ¡that the affiant knows that complainant was informed and belieyes as. alleged, and as to both classes of allegations the verification is sufficient. Burgess v. Martin, 111 Ala. 656; Schilcer v. Brock, 124 Ala. 626.

There is no merit in the objection that the affidavit should have been made by the complainant herself. It sets “forth a sufficient reason why” the verification is not made by her.—Code, p. 1205, rule 15.

The purpose of the bill is single. It seeks satisfaction of complainant’s judgment out of the property of defendants in judgment, which is either held by fraudulent grantees or is concealed;' and it is not open to the objections of multifariousness or misjoinder of parties respondent, for that it is filed against several alleged fraudulent grantees of such defendants, shown by the bill to be claiming through different transactions with the Guytons.—Hinds v. Hinds, 80. Ala. 225; Hill v. Moone, 104 Ala. 353 and cases there cited; Henderson v. Bank, 123 Ala. 547. The form of the transaction by which it is alleged one of the defendants in judgment fraudulently disposed of his assets was this: With the intent to hinder, etc., the complainant, he loaned several sums of money to divers persons, and had them severally execute notes to his wife. On the case made by the bill, these borrowers, so far as- complainant’s rights are involved, owe the money to the defendant in judgment, and will have to pay it in satisfaction of the judgment. Surely they are proper, if not necessary, parties- to the bill. So, also was N. B. Guyton, one of the defendants in the judgment.

In (respect of the mortgage by John S. Guyton to Redden, there are alternative averments : First, it is averred that the mortgage was given by Guyton with intent to hinder, delay and defraud his creditors, and that there was no consideration for it, — that it was a voluntary conveyance. This, of course, rendered it fraudulent and void, whether Redden knew or had notice of Guyton’s eovinous intent or not. The other aver-ments in this connection are as follow's: “That, if there was any debt owing from the said Guyton to the said Redden” at the time of the execution of said mortgage, “the complainant is informed and believes that it was only a small medical bill [the consideration recited in the mortgage is $375 presently received from Redden], and that- payments have been made by the said Guyton to the said Redden which discharged the debt, if one did really exist; that the defendant Guyton at the time of the execution of the mortgage owed the said Redden, she is informed and believes, more than one hundred dollars. The complainant, from information she has, does not believe that the said Guyton has ever delivered the said mortgage to the said Redden, but retains the same in Ms own possession, and the said Redden now refuses to have the said mortgage marked ‘satisfied,’ and thereby conspires with said Guyton to keep the same beyond the reach of coihplainant’s execution.” We suppose it was intended to allege that Guyton owed Redden not more than $100, and we will treat the omission from this transcript of ¡the word “not” as a clerical misprision. Taking the whole averment to mean that Guy-ton owed Redden a small medic-al bill, not exceeding ($100, and considering it in connection with the averred recital of a -cash consideration of $375, and the averment of Guyton’s fraudulent intent in executing the mortgage, we hold that in taking a mortgage, upon such recital of consideration, to secure the payment of a debt not. exceeding $100, Redden was put on inquiry as to Guyton’s purposes and intent, and is, therefore, chargeable with participation in such intent with Gfuyton, and the mortgage would, therefore, be fraudulent and void as to complainant. If the mortgage was made ¡to secure a debt, and was put to record, and the debt has been paid, whatever it's amount, or if the mortgage was never in fact delivered to Redden, and for that reason failed of execution, and in either case Redden conspired with Guyton to keep the record alive, so to speak, to the end of interposing it as an obstacle and a hindrance to the subjection of the land to complainant’s judgment, this would be a fraudulent covering up of the property, for which complainant has a remedy by. a bill in chancery. But it is not averred that the mortgage was recorded; and, for aught that does appear by the 'bill, Redden in this connection is sought to be held for failing to mark satisfaction upon a mortgage — -not upon the record of it — which has never been executed by delivery to him, and of which he ha® never had possession. There is, however, no assignment of demurrer which specially points out this defect in the bill.

The averments of the bill as to the property, money, etc., transferred to Mrs. Guyton, show that money and other property were given to her by lief husband, John S. Guyton, after complainant recovered her judgment. These were voluntary transfers, which are void as to complainant, regardless of the intent actuating the parties, or the knowledge of Guyton’s condition possessed by Mrs. Guyton.

It is no objection to a bill to subject property fraudulently conveyed by a debtor that the creditor complainant has a remedy at law, by garnishment or otherwise to that end.

The bill avers — indeed, the return of the execution shows- — that there is no property standing in the name of the defendants upon which the execution might be levied. The bill further shows that the only property of defendants in judgment which, can be subjected to its satisfaction is that which has been fraudulently conveyed by defendant John S. Guyton, and that which is concealed by Mm, and as to which discovery is prayed. It. further alleges that all the property so conveyed by him is not of sufficient value to pay plaintiff’s judgment. It is thus made to appear that the discovery sought is necessary, even should the alleged fraudulent grantees be forced to restore for complainant’s benefit what they have received from John S. Guyton. The averments of the bill as to Guyton having money, property, and effects which he conceals so that execution against him would be unavailing are as full and precise as the nature of such cases ordinarily and reasonably admits of. They are sufficient to present in this regard a case for discovery, and we deem it unnecessary to enter upon a discussion of the numerous assignments of demurrer against this part of the bill.

The question whether a respondent to a bill of discovery may be imprisoned for failure to answer according to the prayer of the bill is not involved in the present stage of this case. But see Code, §§ 816, 819.

The demurrer of Mrs. Guyton to sub-paragraph 4 of paragraph 3 is without merit. The statutes of limitations of three and six years have no application to the claim presented by said sub-paragraph.—Stouts v. Huger, 107 Ala. 248.

What we have said covers the points argued for appellant. We find no error in the record, and the decree of the chancellor overruling the demurrers to the bill must be affirmed.