Silvey & Co. v. Vernon & Wife , 153 Ala. 570 ( 1907 )

McCLELLAN, J.

— On a bill filed by an existing creditor (at the time the transaction assailed took place) to subject real estate conveyed by a third person to the wife of the insolvent debtor, the onus to prove that the consideration was afforded alone by her, out of her separate estate, and not by the husband, passes to and rests upon her when coverture of the debtor and the grantee, insolvency of the debtor, and the existence of indebtedness, are shown or admitted. This principle is expressly decided in Kelley v. Connell, 110 Ala. 543, 18 South. 9. The relation obtaining between the insolvent husband and the grantee, the wife, operate to raise the presumption that the consideration for the conveyance moved from him, and not from her. As said in the Kelley-Connell Case, “a distinction is taken where that relation does exist, and it is well established that in such case the presumption is that the consideration moved from the husband, and to overcome this presumption the wife, grantee in the conveyance from the third person, must affirmatively show that the consideration moved from her; that she paid the purchase money with her own funds, and not with the funds of her husband directly or indirectly.” The cause was submitted, so far as this question is concerned, on bill and answers. The indebtedness and the insolvency of the debtor and coverture being admitted, the burden was hers to rebut the presumption attending.. This she did not do, and so, the complainant was entitled to the relief prayed.

It follows that the decree of the chancellor in dismissing the bill will be reversed, and one will be here rendered granting the relief sought by the bill, to which end, the conveyances, to respondent Frances Honora Vernon, describing the lands mentioned in paragraph 7 of the bill, are hereby canceled, and the said real estate is declared subject to sale for the satisfaction of complainant’s demand, unless within 30 days after the enrollment of this decree the said demand is paid, together with the costs here and- in the court below.

Reversed and rendered.

Tyson, C. J., and Simpson and Anderson, JJ., concur.