Calvert, et al. v. Calvert

Calvert, et al. v. Calvert. Bill to Set Aside Fraudulent Conveyances. (Decided May 30, 1912. Rehearing denied December 17, 1912. 60 South. 261.) 1. Fraudulent Conveyances; Consideration; Burden of Proof.— Where the answer admitted the equities of the bill, except as to the bona fides and the consideration, the burden as to them being on the respondents, and the case was submitted on the bill to set aside fraudulent conveyances, the exhibits and the answers, and no other proof was offered, the chancellor properly granted complainant relief. 2. Discovery; Interrogatories to Adverse Party; Introduction. — Interrogatories propounded to an adverse party are in the nature of a substitue for a bill of discovery and the answers thereto are admissible only when offered 'by the party taking them; therefore they cannot be introduced by the party making the answers over the objections of the party taking them. Appeal from Blount Circuit Court. Heard before Hon. J. E. Blackwood. Bill by Jim Calvert against Joe Calvert and another to set aside and annul certain conveyances alleged to be fraudulent. From a decree granting plaintiff relief respondents appeal. Affirmed. Russell & Johnson and Gaston & Pettus, for appellant. Exhibits to bills must be proven or admitted by respondent. — Daioson v. Burns, 73 Ala. Ill; Scott v. Brassell, 132 Ala. 660; Baker v. Young, 90 Ala. 426; Rules 16 and 64 Chancery Practice; section 3141, Code, 1907. Where the hearing is on the bill and answer the complainant is not entitled to a decree unless it be on the admitted allegations of the bill.- — Reese v. Barker, 85 Ala. 474; Winters v. Montgomery, 83 Ala. 389; 16 Cyc. 383. It cannot be said from the answer that the allegations of the third paragraph were admitted.— Latham v. Stapleton, 46 Ala. 452; Lockhart v. Troy, 48 Ala. 579; Savage v. Beecham, 17 Ala. 119; Lampley v. Weed, 27 Ala. 629. While it is true that evidence taken by depositions against the' adverse party can only be introduced in evidence by the party taking them, it is submitted that the note of submission in this case contained a submission on this testimony. — 8 Words & Phrases, 6933; Brockhard v. Clements, 23 Ala. 296; Soil Ry. Co. v. Hudgins, 116 Ala. 384; sections 3138 and 4053, Code 1907. The note of testimony is conclusive as to what is offered. — Section 373, Sims Chan. Pr.; Reese v. Barker, 85 Ala.. 474; Tatum v. Yahn, 130 Ala. 575; Rule 76 Chancery Practice. W. A. Weaver, for appellee. The depositions were not offered by the complainant and hence the court had no right to consider the same and base a decision thereon. — Article 9, chapter 84, Code, 1907; Southern Ry. Co. v. Hubbard, 22 South. 541. All the averments in the bill in this case were admitted, except the bona tides, and the consideration and the burden as to these matters was on the respondent and he offered no proof.. Hence the chancellor could not find otherwise than as he did. — Sides v. Schaiff, 9 South. 228; Robinson v. Moseley, 9 South 372 ; Schall v. Weil, 15 South. 829; Wood v. Peeples, 25 South. 722; Waits v. Burgess, 30 South. 868; Roble v. Gilliam, 30 South. 861. [MAJORITY — MAYFIELD, J.] MAYFIELD, J. The bill in this case was filed to set aside and annul, as fraudulent, two conveyances made by Joe Oalvert to Vida Oalvert (appellants), copies of which are attached as exhibits to the bill. One of the conveyances is of land, and the other of personalty. The recited consideration of the first is love and affection and the payment of $100, while that of the second is love and affection and the payment of $50. The bill alleges that appellee ivas a creditor of Joe Oalvert, the grantor, in this manner: That prior to the time of the conveyances Joe Oalvert committed an assault and battery upon appellee, and that thereafter appellee obtained a judgment against Joe Oalvert in the siim of $1,000, and that between the time of the assault and the obtaining of the judgment Joe Oalvert conveyed the property described, being substantially all that he had, to his wife, in order to hinder, delay, or defraud appellee, his creditor. It further alleges “that there was no consideration passing from said Yida Oalvert to said Joe Oalvert, or that the consideration therefor was simulated.” The answers admitted all the averments of the bill, except that the conveyances were fraudulent, and that there was no consideration therefor, or that the consideration was simulated, and averred: “Respondents deny that the consideration for said' conveyances are simulated, or that they were made to hinder or delay or defraud the complainant in any way; but respondents say that, in addition to the consideration expressed in the conveyances of which exhibits purport to be a copy, the respondent Yida Calvert paid out for respondent Joe Calvert, or assumed the payment of, the following debts: The payment of $150 which were mortgage debts against the lands described in the bill of complaint, and the assumption by respondent of the payment of $50 due by respondent Joe Calvert to Joe Albrittain, and tbe assumption by respondent of the payment of $71 due by respondent Joe Calvert to Jasper Calvert, as tbe administrator of tbe estate of J. C. Calvert, and tbe assumption by respondent Vida Calvert of tbe payment of two notes, aggregating $121, due and owing by tbe said respondent Joe Calvert.” Tbe case was submitted on tbe bill, exhibits, and answer ; no other proof being offered. Tbe answer having thus admitted tbe equities of the bill, except as to tbe bona fides and tbe consideration, as to which tbe burden of proof was upon tbe respondents, tbe chancellor properly granted tbe relief prayed. Tbe note of testimony shows that tbe respondents submitted on their answer, tbe bill, and their answers to tbe interrogatories propounded to them by tbe complainant ; but tbe record further shows that complainant objected to tbe respondents’ offering this proof, and that tbe court sustained this objection, and properly so, because these answers were admissible only when offered by tbe complainant. Interrogatories propounded to tbe adverse party, under our statutes, are treated as being in tbe nature of a statutory substitute for a bill of discovery, and are not admissible in evidence unless offered by tbe party taking them, and, if offered at all, they must be offered as a whole, and then tbe party answering may have tbe benefit of tbe answers ; but be cannot introduce them in evidence, certainly not over tbe objection of tbe party taking them. Such interrogatories and answers of tbe adverse parties are different from those of Avitnesses. Tbe cases of Gunn v. Hardy, 130 Ala. 642, 31 South. 443, and Schall v. Weil, 103 Ala. 411, 15 South. 829, are conclusive, “in such a contest, tbe onus of proving that the conveyance Avas founded on an adequate and valuable consideration is upon the grantee. The bill in this case averred, and tbe proof showed, the complainants’ claim against the alleged fraudulent grantor was in existence before and at the time of the Conveyance to the grantee. It has long been settled in this state that in a controversy of this character the recital of the consideration of a deed thus assailed is not evidence against the creditor, and is the mere declaration or admission of the grantor, as between him and the grantee. There ivas no proof on the part of the grantee as to the consideration of this deed. He relied upon the denials in his answer, and supposed these put the burden of proof of the allegations of the bill on the complainants. Under our uniform rulings, we must regard the conveyance as voluntary and fraudulent.—Hubbard v. Allen, 59 Ala. 283; Hamilton v. Blackwell, 60 Ala. 545; Zelnicker v. Brigham, 74 Ala. 598; Thornton v. City Council of Montgomery, 88 Ala. 552 [7 South. 363]; Chipman v. Glennon, 98 Ala. 263 [13 South. 822]; Schall v. Weil, supra. There was no error in the decree of the chancery court, and it must be affirmed. Affirmed. All the Justices concur.