Cook v. Clark, Davis & Co. , 212 Ala. 257 ( 1924 )

By their bill in this cause appellees sought a decree setting aside an assignment of insurance policies on his life by Floyd F. Cook, now deceased, to appellant. The averment, to state the substance of the bill in brief, is that deceased, being insolvent and in the last stages of pulmonary tuberculosis, did, with intent to hinder, delay, or defraud complainants and his other creditors, transfer the two policies in question, both theretofore payable to his estate, to defendant, his sister, who knew of his insolvency, and for a grossly inadequate consideration, or none at all, by changing the beneficiary therein, or otherwise. It is further shown that defendant has collected the amounts named by the policies, and decree against her for the same is prayed. Defendant's demurrer to the bill was overruled.

The form of the transaction by which property liable to the satisfaction of the demands of creditors is fraudulently sought to be placed beyond their reach is immaterial. All such transactions are avoided on the prayer of creditors. As against existing creditors, a voluntary conveyance is per se fraudulent. The averments of the bill definitely bring the transactions alleged in the bill under the rule of the foregoing principles. Lehman v. Gunn, 124 Ala. 213, 27 So. 475, 51 L.R.A. 112, 82 Am. St. Rep. 159.

It cannot be presumed on demurrer that defendant had any vested interest in these policies or their proceeds by reason, for example, that she had paid premiums. If, by reason of that or any other fact, defendant had an interest in these policies such as put them beyond the reach of creditors, that is matter of defense. To indulge the presumption suggested by defendant would involve more than a construction of the bill against the pleader; it would involve an assumption of an independent fact as to which the bill says nothing, nor affords any ground of inference. The policy is alleged according to what the pleader conceived to be its legal effect, as the rules of pleading allow, and the bill on its face is not open to the objection taken against it.

Nor is the equity of the bill adversely affected by the fact that, as alleged, the proceeds of the policies have already been paid by the insurance companies over to defendant. It is true that complainants do not specifically pray for a money decree against defendant; but relief is awarded according to the facts alleged in the bill, and, the facts being proved as alleged, the court, on the suggestion of complainants at the hearing, will, under the general prayer for relief, enter such decree, not inconsistent with the relief specially prayed, as the facts warrant. Rosenan v. Powell, 173 Ala. 123, 55 So. 789. If, as averred, defendant has received the proceeds of the policies, she will be treated as a trustee for the benefit of the creditors of her donor. Fearn v. Ward, 80 Ala. 564,2 So. 114.

There is shown no reason why the insurance companies should be made parties defendant. They have paid over the money secured by the policies to the transferee of the insured. No relief is prayed against them; nor is their presence necessary to the settlement of the controversy between complainants and defendant.

The decree overruling the demurrer to the bill must be affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.