Long v. Campbell , 133 Ala. 353 ( 1901 )

DOWDELL, J.

In a bill by a creditor without a lien filed for the purpose of setting aside a conveyance •by Ms debtor on the ground of fraud (Code, § 818), the lien acquired by the filing of the bill attaches only to the property embraced in the fraudulent deed or conveyance.

If the deed of assignment from Campbell to Price, made for the benefit of ¡the grantor’s creditors, was in its inception bona fide and free, from fraud, collusive ■acts of the grantor and assignee subsequent to its execution would not render it void. “The fraud must have entered into the assignment at the time it was made. No subsequent acts of the parties‘can invalidate •an assignment made bona fide.” — 1 Am. & Eng. Ency. Law (1st ed.), 869, and notes citing authorities. The deed of assignment conveyed all of the grantor’s property of every ldnd 'and description “except his homestead in which he now resides.” It is contended by counsel for appellant that this was such a reservation of benefit to the debtor grantor as would avoid the conveyance. It is perfectly clear that by this exception in the deed, the homestead was not conveyed.. It is equally clear that the property excepted from the deed and not conveyed, was subject to legal process by the creditor just as it was before the making of the deed of assignment. There was nothing in the deed to hinder or delay the creditor in taking any legal proceeding to subject the excepted property to the payment of his debt, Avhicli he had prior to its execution. There is a plain and evident distinction between the reservation of a benefit and an exception in a deed of assignment. The reservation, that taints the deed and avoids the conveyance, whether expressed in the contract or secretly made, is one of benefit to the grantor in the property conveyed. There Avas no such reservation in the present case; no benefit was reserved to the grantor in anything conveyed. — Frank et al. v. Myers et al., 97 Ala. 437. There is northing in the face of the deed to render it void. The chancellor’s finding that there Avas no actual fraud in the transaction at the time of the execution of the deed of assignment, we think is fully supported by the evidence. Incapacity, or mismanagement of the trust estate, on the part of the assignee, was ground for his removal as trustee, at the instance of tbe creditor, but not ground for avoiding the deed of assignment.

The question as to the validity of the complainant’s claim, which is discussed at. length by counsel for appellees, is noit properly before us for consideration on this appeal. There is neither a cross-appeal, nor cross-assignments of error by appellees, and in order for the appellees to have any rulings of the court adverse to them, reviewed here, it was necessary for them to prosecute an appeal, or to cross-assign errors under the rules.

The decree of the chancellor is affirmed.