Buford, McLester & Co. v. Shannon

Buford, McLester & Co. v. Shannon. Statutory Action in nature of Ejectment. 1. Failure to record deed; intervening levy of attachment. — The failure to file a conveyance for record until the twentieth day after its date and execution does not affect its validity as against an attachment levied during the interval, especially where the attaching creditor had actual notice of the deed. 2. Parol evidence as to consideration of deed. — When a conveyance of land recites as its consideration the payment of money in hand, and its validity is assailed by creditors of the grantor, parol evidence is admissible to show that the actual consideration was the payment and satisfaction of an antecedent debt. 3. Declarations as evidence; general objection to evidence partly admissible. — Although the declarations of the grantor in a conveyance, the validity of which is attacked by creditors, as to the compensation he was paying the grantee for his services as clerk, are mere hearsay, and therefore inadmissible as evidence, where a third person testifies as to, them; yet, when the witness also testifies to the compensation agreed on between them, and objection is made to his entire testimony, it may be overruled entirely, since a part of the evidence is legal. 4. Conveyance by insolvent debtor to creditor; validity as against other creditors. — 'k conveyance of land by an insolvent debtor to one of his creditors, in absolute payment of an existing debt, is not rendered invalid as against other creditors by the grantee’s knowledge of the grantor’s insolvency: but, if it is accompanied with the sale of a stock of goods, at a fair valuation, in payment of the balance of the debt, a small excess of about $20 being paid by the purchaser in cash, this would invalidate the entire transaction as against other creditors; yet, where the bill of exceptions states that the evidence showed, without controversy, that there was no connection between the two contracts, and that the sale of the land was concluded before any negotiations were had in reference to the purchase of the goods, the implied fraud in the lat'er contract does not affect the validity of the former. 5. Samp; proof of payment of consideration, — When a conveyance of property by an insolvent debtor to one of his creditors, in payment of an existing debt, is assailed by other creditors as fraudulent, the onns is on the grantee to establish r,he existence, bona fides, and amount of his debt, showing no material discrepancy between it and the reasonable value of the property ; but, if the jury are satisfied from the evidence that the amount of the debt as claimed was due and allowed on a settlement between the parties, it is not necessary that each of the items involved should also be separately proved to their satisfaction ; and a charge requested, instructing them (.hat they must find against the deed, unless each item of the indebtedness claimed is proved to their satisfaction, is properly refused. Appeal from tlie Circuit Court of Blount. Tried before tlie Hon. Jora B. Tally. This action was brought by the appellants, suing as a late partnership, against W. J. Shannon and others, to recover the possession of a tract of land, and was commenced on the 21st January, 1889. The plaintiffs claimed the land as purchasers at a sale made by the United States marshal, on the 28th November, 1887, under legal process issued on two judgments in attachment cases against M. L. Shannon, one of which was in favor of said plaintiffs; and they offered in evidence the marshal’s deed to them and the judgments and proceedings in the two attachment cases. The defendants had entered into possession as the tenants of John A. Allred, who claimed under a conveyance' from said M. L. Shannon, which was executed a few days before the levy of the attachments ; and he having died, his heirs at law were admitted to defend on their own claim of title. The plaintiffs attacked the validity of the deed to Allred, on the ground of fraud, and the defendants adduced evidence tending to show its consideration and bona fieles. The plaintiffs objected to the admission of the deed as evidence, and also to the evidence offered to show its consideration; and exceptions were reserved to the admission of this evidence. J. P. Greene, a witness for defendants, testified as to the consideration of the deed, stating that Allred had been in the employment of Shannon for several years; that he had several times made settlements between them, when Allred allowed Shannon to retain the amount due him, and had seen Allred lend money to Shannon at different times, in sums of $80, $40, $50, &c.; and that the amount due to Allred by Shannon at the date of the deed, was about $1,400. Being asked, on cross-examination, “how he knew what Shannon paid Allred for his time,” the witness answered, “that both Allred and Shannon told him that Shannon was paying Allred $25. per month for his work; that he saw the books, made settlements for them, and saw Allred lend his wages to Shannon. Plaintiffs here moved the court to exclude from the jury all that the witness had said about what Shannon had said or agreed to pay Allred for his labor, on the ground that the same was illegal evidence; which motion the court overruled, and the plaintiffs excepted.” The evidence showed, also, that on said 6th February, 1886, but after the completion of the contract for the sale of the land, Shannon sold and transferred to Allred his entire stock of goods, valued at $600 or $700, in payment of the residue of his debt to Allred, receiving $20 or $25 as the estimated difference; that Allred knew at the time that Shannon was insolvent, and that he was Shannon’s son-in-law. On the facts above stated, “being in substance all the evidence,” the court charged the jury, on request of the defendants, as follows: “If the jury find from the evidence that Shannon, when he conveyed the land in controversy to Allred, was indebted to him in the sum of $700, and that this was a fair and reasonable valuation of the property, and that the land transaction was consummated before the purchase of the goods; then this is a sufficient consideration for said deed.” The plaintiffs excepted to this charge, and also to the refusal of each of the following charges, asked by them in writing: (1.) “If the jury believe from the evidence that Shannon owed the plaintiffs a sum of money on February 6th, 1886, then the law casts on the defendants the burden of proving the consideration of the deed from Shannon to Allred by clear and satisfactory proof; and if the jury further find from the evidence that Allred was Shannon’s son-in-law, then the law is that defendants must prove the component amounts aggregating the fair value of the lands; and if they fail to prove the different amounts by items which, added together, will show the payment of the value of the property conveyed, then it is the duty of the jury to find for the plaintiffs.” (2.) “If the jury believe the evidence, they will find that Allred either knew, or was in possession of facts calculated to stimulate inquiry; [? | and if they find the fact so to be, and that Allred, on the day the conveyance was made to him by Shannon, paid Shannon $25 or $30 in money, this would render the transaction fraudulent and void as to plaintiffs.” (3.) “The law requires the defendants to show an indebtedness from Shannon to Allred equal to the fair valuation of the land conveyed on the 6th February, 1886, and if they have failed to show by clear and satisfactory proof the different items of the indebtedness, which, when added together, will aggregate the reasonable value of the land at the time it was conveyed by Shannon to Allred, then plaintiffs are entitled to judgment for the land.” (4.) “The loans of $150, $50, $35, $25, and $50, are the only payments by Allred to Shannon established by defendants by that measure of proof which the 'law requires in this case, and this is insufficient to establish the bona tides of the deed from Shannon to Allred; and the verdict of the jury should therefore be for the plaintiffs.” (5.) “The defendants must prove the payment of the reasonable value of the land conveyed by Shannon to Allred; and if the jury believe from the evidence that the payments of $150 at one time, $50 at another, $35 at another, $25 at another, and $50 at another, were all the payments made, as established by clear proof, then said deed is fraudulent and void as against plaintiffs, and their verdict should be for plaintiffs.” (6.) “The burden of proof is on the defendants to show by clear and satisfactory evidence that Shannon owed Allred, on the 6th Feb., 1886, an amount equal to the reasonable, market value of the land conveyed, and piso to show the different amounts due by Shannon to Allred, aggregating the value of the land conveyed at the time; and unless the jury believe the evidence shows this to their satisfaction, the defendants are not entitled to recover, and the verdict of the jury should be for the plaintiffs.” ■ (7.) “If the jury believe from the evidence that Allred got $600 or $700 worth of goods from Shannon on the 6th Feb., 1886, in addition to the land conveyed by deed of that date, then the duty devolves on defendants of showing by clear and satisfactory evidence the existence of an indebtedness from Shannon to Allred equal to the value of the goods and the land so conveyed; and unless the jury believe that the evidence clearly establishes this amount of indebtedness, their verdict should be for the plaintiffs.” (8.) “If the jury believe the evidence of J. P. Greene is the only evidence before them of the sale of both the land and the goods ; and if they further believe that both sales were made at the same time, and that the $25 or $30 was paid; and if there is no other evidence of said sale, and said Greene is uncontradicted and unimpeached, they can not disregard bis testimony capriciously; and if tbey believe tbis testimony, in connection witb tbe other evidence, tben tbey sbonld find that tbe deed from Shannon to Allred is void, and return a verdict for plaintiffs.” (9.) “If tbe jury believe from tbe evidence that Allred bought $600 or $700 worth of goods from Shannon on tbe 6th Feb., 1886, then tbe burden of proof is on tbe defendants to show that Shannon owed Allred an amount equal to tbe value of tbe goods, in addition to tbe value of tbe land, and unless tbis indebtedness is shown by clear and satisfactory proof, tbe verdict should be for plaintiffs.” (10.) “In this case, tbe burden of proof is on tbe defendants to show by clear, satisfactory proof, tbe value of tbe consideration passing from Allred to Shannon for tbe property conveyed, and in tbe absence of such proof to tbe satisfaction of the jury, tbey should find for tbe plaintiffs.” (11.) “Under the law of tbis case, and tbe evidence before tbe jury, if tbey believe tbe evidence, tbe deed from Shannon to Allred, of date Feb. 6th, 1886, is fraudulent and void as against plaintiffs.” (12.) “Tbe jury con not indulge in any presumption of payments by Allred to Shannon, but it devolves on tbe defendants to show by clear and satisfactory proof tbe payment by Allred of tbe value of tbe property conveyed; and if defendants have failed to prove tbis, tbe jury will find for tbe plaintiffs.” Tbe other charges asked and refused were these : (18.) “There is no proof before tbe jury of an indebtedness of $1,400 from Shannon to Allred, such as tbe law requires, by clear and satisfactory proof.” (14.) “There is no proof before tbe jury of an indebtedness of $1,400 from Shannon to Allred, and tbe jury will not look to any evidence about $1,400 being due.” (15.) “There is no proof before tbe jury of any indebtedness from Shannon to Allred of $1,400.” (16.) “If tbe jury believe tbe evidence in tbe case, tbey should find for tbe plaintiffs.” Tbe rulings on evidence, tbe charge given, and tbe refusal of tbe charges asked, are assigned as error. JNO. C. Eystee, for appellants. {1.) Plaintiffs’ attachment created a lien, and tbe judgments obtained related back to tbe levy. — Code, § 2957; Stripling & Oo. v. Cooper, 80 Ala. 256; Scarborough v. Malone, 67 Ala. 370; Reid v. Perlcins, 14 Ala. 231; Randolph v. Carleton, 8 Ala. 606. Tbe court therefore err.ed in admitting tbe deed to Allred as evidence, and in refusing tbe general charge asked by plaintiffs. (2.) The testimony of Greene, as to what Shannon told him he had agreed to pay Allred, was mere hearsay, and should not have been admitted. (3.) The charges asked by plaintiffs asserted correct legal principles, some of them in the exact language of former decisions of this court, and should have been given.— Livy v. Williams, 79 Ala. 171; Lehman v. Kelly, 68 Ala. 292 ; Crawford v. Kirlc-sey, 55 Ala. 293; Hubbard v. Allen, 59 Ala. 283; Thoringkon v. City Oouncil, 88 Ala. 548; Lehman v. Greenhut, 88 Ala. 478; Pollock v. Searcy, 84 Ala. 263; Wedgeworth v. Wedge-worth, 84 Ala. 274; Gordon v. Mcllwain, 82 Ala. 252:-Lipscomb v. McClellan, 72 Ala. 151. INZER & Ward, contra. [MAJORITY — MoCLELLAN, J.] MoCLELLAN, J. 1. This is an action of ejectment, prosecuted by Buford, McLester & Co., against John A. Allred and others. Plaintiffs claim under a deed executed to them by the marshal of the United States District Court for the Southern Division of the Northern District of Alabama, by whom the land was sold under a judgment and condemnation in attachment prosecuted by said plaintiffs against M. L. Shannon, for the collection of a debt existing prior to February 6, 1886. - The attachment was levied on the land February 11, 1886. The marshal’s deed bears date as of December 1, 1887. Defendants claim under a deed executed February 6, 1886, prior to the levy of the attachment, by Shannon, the debtor and defendant in attachment, to John A. Allred, on a recited consideration of seven hundred dollars “in hand paid.” This deed was not recorded until February 25, 1886, subsequent to the levy. Shannon’s insolvency at the date of his deed to Allred may be taken as having been conceded on the trial below. For all the purposes of this appeal, it may be further conceded that Allred had knowledge or notice of his grantor’s insolvency. From the foregoing facts and concessions it follows, that the burden was on Allred to show a conveyance by Shannon to him in satisfaction of an antecedent liona fide debt, substantially equal in amount to the value of the land conveyed. In discharge of this burden defendants offered the deed which we have described. Its introduction in evidence was objected to in limine, on the ground that “it was fraudulent and void on its face as against plaintiffs, creditors of Shannon, in this : because said deed was executed on the 6th day of February, 1886, and was not filed for record until the 25th day of February, 1886, and plaintiffs’ lien on said property was acquired by the levy of the writs of attachments thereon on the 11th day of February, 1886.” The court very properly overruled this objection. The delay in putting the deed to record shown in this case did not avoid it, as against an intervening attachment levy; and, moreover, it is not controverted but that plaintiffs had actual notice of Allred’s claim of title to the land before the levy was made. 2. The assignment of error based on the refusal of the court to exclude testimony going to show that the consideration of the deed was an indebtedness from the grantor to the grantee, is untenable. This class of cases does not involve an exception to the rule that, where a particular valuable consideration, as money presently paid, is recited, another and valuable consideration, as- the satisfaction of a pre-existing indebtedness, may be shown in support of the deed. — Wait’s Fraud. Con. § 221; Mobile Savings Bank v. McDonnell, 89 Ala. 434. 3. It may be that certain declarations of Shannon, as to what he was paying Allred for his services, deposed to by the witness Greene, were not competent to prove the debt relied on by Allred as a consideration for the conveyance to him; but this witness also testified as to the compensation agreed on between Shannon and Allred as the latter’s wages. We know of no more direct or approved method of establishing the fact in question than this. The motion of plaintiff in this connection was to exclude, not only Shannon’s declarations, but his agreement with Allred. There was no error in overruling it. Kellar v. Taylor, 90 Ala. 289; Badders v. Davis, 88 Ala. 367; Lowe v. State, Ib. 8. 4. The evidence tended to show that the whole amount of Shannon’s indebtedness to Allred was $1,400. On the day on which Allred purchased the land involved here from Shannon, in satisfaction in part of this indebtedness, he also purchased from him a stock of goods valued at $20 or $25 more than the balance of his claim, and paid therefor either $20 or $25 in money, and the balance by satisfying that part of his debt not liquidated in the land transaction. In view of Shannon’s insolvency and Allred’s knowledge of it, this latter transaction, involving as it did a present cash consideration in part, would have invalidated the sale and conveyance of the land, could the transactions be considered as one, or had there been any connection between the two. But that there was no such connection is put beyond a doubt, for all our purposes, by the following recital in tbe bill of exceptions : “Tbe evidence further tended to show, and upon this point there was no controversy, that the deed for the property in suit was executed and delivered before any negotiations were had with reference to the gosds ; that afterwards, and perhaps on the same day, Shannon sold Allred groceries, &c:, to pay balance due; that after the goods were selected and invoiced, they amounted to some $20 or $25 more than the balance, and All-red paid that difference in money.” In view of this recital, it is not conceivable how the purchase of the goods can any way affect the prior and wholly disconnected transaction with respect to the land. Yet the objection to the charge given for the defendants, and the exceptions to the refusal by the court of charges 2,- 7, 8 and 9, proceed on the theory, that the first transaction, though in and of itself hona fide and valid, was infected with fraud and avoided by what subsequently and wholly independently took place between the parties in reference to the stock of groceries ; while charges 10 and 12 asked by plaintiffs, and refused by the court, manifestly tended to mislead the jury to the same conclusion. The assignments of error addressed to the court’s action on these several charges are without merit. 5. While the burden of proving the prior existence and present satisfaction of indebtedness from Shannon to Allred, in amount equal to the value of the land, as a consideration for the deed, by clear and convincing evidence, was on the defendants, as declared in many of the charges refused to the plaintiffs, it is quite an error to suppose, as these charges further declare, that it was essential to prove each separate item aggregating the requisite sum. Cases may well be imagined — and indeed this is one of them — where proof of a gross sum found to be due, acknowledged and agreed to be paid, on a settlement between the parties, might well be entirely satisfactory to a jury, though the witnesses deposing thereto had no knowledge whatever of the dealings between the parties, or the items of debit and credit involved therein, which necessitated and led up to such settlement. Such instructions are especially pernicious in eases like this, where it appears the creditor and debtor, the only persons who ordinarily would be conversant with the itemization of the account, die before the trial is had. Charges 1, 3, 6,11, 13, 14, 15 and 16, asked by plaintiffs, either expressly require proof of the items of the alleged indebtedness, or proceed on the theory that such proof is essential; and this though the- jury might reasonably be entirely satisfied of the amount and bona fides of the claim from other competent evidence. And charges 4 and 5 were well calculated to mislead the jury to tbe conclusion that they could not find an indebtedness beyond certain specific sums, which one witness testified that Allred loaned to Shannon, because the alleged debt in excess of this amount was not proved item by item, though there was abundant proof, even by plaintiffs’ own witnesses, that these loans did not constitute the whole indebtedness, and other evidence tending to show that, on settlements made between the parties, the balance in Allred’s favor was largely more than the sum of these loans. Many, if not all of these charges, were faulty in other particulars, but it is unnecessary to further discuss them. Each of them was properly refused. We find no error in the record, and the judgment of the Circuit Court is affirmed.