
    Pippin v. Tapia, et al.
    
    
      Bill by Creditor to Bet Aside Conveyance for Fraud.
    
    (Decided Nov. 15th, 1906.
    42 So. Rep. 545.)
    1. 'Fraudulent Conveyance; Consideration. — The wife commenced divorce proceedings against the husband, and obtained injunction against his disposing of his property. Afterwards she agreed to discontinue her suit for divorce and entered into a •contract with him whereby he agreed to cease drinking and to properly support her and she agreed to live with him, provided he executed to her a deed to certain property, to be placed i.n escrow, to be delivered to her upon bis breaking the agreement. Held, such deed is not voluntary, nor a fraud on creditors, though the property conveyed was worth more than the alimony she might have obtained.
    2.' Same'; Knowledge of Grantee. — A conveyance, even if it be of substantially all of grantor’s ’property, and made with fraudulent intent, if it be for a valuable consideration, will not be set aside at the suit of a creditor unless if is shown that the purchaser-knew of and participated in the fraudulent intent.
    Appeal from Greene Chancery Court.
    Heard before Hon. Ti-iomas IT. Smith. ■
    Complainant sought.,as a creditor of Ed. Pippin, to have declared a conveyance made by Ed. Pippin to Minnie Pippin voluntary and fraudulent and void, and to ■fasten a lien in favor of complainant upon the lands described in the bill, 'or, in the event the court determined that Ed. Pippin in his then financial condition had the right to make provision for his wife, to ascertain to what extent the said Pippin had that right, taking into consideration his financial condition, and to have the court ascertain the value of the land deeded by Ed Pippin to his wife, and, if the value of said lands exceed the amount said Pippin had the right to provide for his said wife, then and in that event to have said deed held voluntary and fraudulent and void as to said excess’ and set aside as to such excess, and to' have a lien fixed’ on the land for said excess.
    deGraefinried & Evin, and McQueen & Hawkins, for appellant.
    — The deed from Ed Pippin to Minnie Pippin is absolutely without consideration and is .wholly null and void. — Sayles v. Smjlcs, 53 Am. Dec. 208; Muchlenlmrg v. Heller, 92 Am. Dec. 345; 2 A. & E.Ency.. of Law, (2nd Ed.) 127, note 2. The deed was void in excess of one-third of Pippin’s property as against appellant’s claim. — Gordon v. Ticeedy, 71 Ala. 207; Gald-loell v. King, 76 Ala. 149; Sides v. Scharff, 93 Ala. 106; Mobile Savings Bank v. McDonald, 89 Ala. 434. It is well settled that the deed could convey no title and. could not become effective for any purpose until delivered to Minnie Pippin. — Frisbie v. McCarty, 1 S. & P. 56; Ful
      
      ler v. Hollis, 57 Ala. 435; EUsberry v. Boykin, 65 Ala. 336; Cherry v. Herrin, 83 Ala. 458.
    • I-Iarwood- & McKinley, for appellee.
    — A. motion to dismiss for want of equity, should be granted — when admitting all the facts apparent on the face of the bill, the bill is still without equity. — Blackburn v. Fitsrjerald, 130 Ala. 584. •
    The bill fails to' allege that Ed A.- Pippin, the alleged fraudulent grantor, owned the property described in the deed which is here assailed; the bill therefore fails to show that the complainant has been or can be hindered, delayed or defrauded by the execution of said deed, and the hill is therefore without equity. — Jones v. Latham, 70 Ala. 164 (167) ; Moorcrv. Moorer, 87 Ala. 545 (547).
    The conveyance here assailed is not voluntary, but on the other hand is based upon a valuable consideration.— Bibb v. Freeman.,, 59 Ala. 612 (615); Earley v. Lane, 68 Ala. 174; Adams v. Adams, (N. Y.) 43 Am. Rep. 675; Allen v.-Prater, 30 Ala. 459; Wyatt v. Evoais, 52 Ala. 287; Colvin v. Colvin, 2 Paige 285; Jodrell v. Jodrell, 9 Beav. 45; Hobbs v. Hull, 1 Cox Ch. Gas. 445; Goodman v. Bimonds, 20 Howard, 343; Barbour v. Barbour, 49 N. J. Eq. 429. .
    Not only is the consideration a valuable one, but “no consideration can be named of higher importance.”— Barbour v. Barbour, 49 N. J. Eq. 429. And not only this, but it has been expressly decided that a conveyance based upon such consideration can not be successfully attacked by a creditor of the husband. — Hobbs v. Hull, 1 Cox Ch. Cas. 445. In order to give the bill equity, it must have alleged that the conveyance was ex-'eeuted by the grantor “with the intent to- hinder, delay or defraud.” — Hager v. Bhindler, 29 Cal. 48; Allen v. Riddle, 37 So. 680. The bill therefore contains no equity. and was properly dismissed on the motion. — Harrell v. Mitchell, 61 Ala. 270; 14 A. & E. Enc. Law, (2nd Ed.) 224, 225.
    Unless it- be alleged that the deed was executed by the grantor with the intent to hinder, delay or defraud his creditors, and that the grantee knew of and participated in such fraudulent intent — -then the bill is without equi
      ty. — Simmons v. Shelton, 112 Ala. 291; Lee v. Adobe, 1 Am. Dec. 78.
    A fraudulent conveyance is not void, hut voidable onh¡> and may be ratified by the creditors. Whether this conveyance be fraudulent or not, the complainant has ratified it by accepting and retaining benefits under it, and be can not therefore impeach it. — Robbins Fry v. Woolen, 128 Ala. 373; Kahn v. Peter, 104 Ala. 531; Butler v. O'Brian, 5 Ala. 322; Robinson v. Pebioorth, 71 Ala.. 247; Qodden v. Pierson, 42 Ala. 371; Pickens v. Yarbrough, 30 Ala. 408.
    The cases of Kahn v. Peter, 104 Ala. 531, and Pickens v. Ya/rhrough, 30 Ala. 408, are decisive of this case.
    The consideration for the deed was both valuable and adequate; and no new consideration Avas needed to give it validity, AAdien it Avas delivered to the gi antee by the depositary. — 11 A. & E. Enc. Law (2nd Ed.) 335 and 345; White Star Line v. Morange, 91 Ala. 611; Feigley v. Feigley, 61 Am. Dec. 379; Pope v. Brandon, 2 SteAy. 401; Shealey v. Edioards, 75 Ala. 418; Barbour v. Barbour, 49 N. J. Eq. 429; Hobbs v. Hull, 1 Cox Ch. Cas. 445.
   HARALSON, J.

— Minnie Pippin and Ed A. Pippin, according to the averments of the bill were, up to the fall term, 1900, of the chancery court of Greene county, lawful husband and wife; that said Minnie, on a bill theretofore filed by her against her said husband in said court for the purpose, ^ obtained a decree divorcing her from him, and they did not, thereafter, live together as man and wife.

In the said bill, said Minnie prayed not only for a divorce, but for alimony and counsel fees, and in aid of her said suit, she prayed for and procured an injunction to be issued against her said husband, whereby he was enjoined from disposing of any of his property pending the suit.

Prior to filing her bill for divorce, the said Minnie had abandoned her husband, and went to Montgomery to live. After the filing of the bill and the issuance of said injunction, the said Ed A. Pippin went to Montgomery, and without knowledge or consent of plaintiff, wlm Avas a creditor of said Ed A. Pippin, as the bill alleges, entered into a contract with bis said wife, and executed tlie deed wbicli is songbt to be set aside in this case. The said, deed ivas a part and parcel of said contract, and the two were executed at the. same time. The deed ivas placed in the hands of a law firm, as an escrow, to be delivered to said Minnie, whenever her said husband violated the terms of said agreement. The contract further recited, “that E. A. Pippin has and does hereby agree to amend his habits and cease all use of intoxicating liquors, and has agreed and does hereby agree, in consideration of the agreement hereinafter (in this contract) made by said Mrs. Minnie Pippin, to execute a deed to an undivided one-half interest in certain lands in said Greene county, Alabama, which are described in said deed, with the condition that such deed, is to be deposited in escroAv, with Messrs. Hill & Hill, attorneys, in the city of Montgomery, to be delivered to the said Mrs. Minnie Pippin, whenever the said E. A. Pippin shall violate his promise to cease the use of all spirituous liquors, a copy of which deed is heréto attached and made' a part of this agreement; and should the said E. A. Pippin faithfully, in letter and spirit, keep said promise for two years from the date of this instrument, then the said Hill & Hill are to return said deed to said E. A. Pippin. The said E. A. Pippin further agrees to support and maintain his said wife in all things as she should be, and should he fail in this respect, he agrees that Hill & Hill shall then deliver as a perfect conveyance, said deed to said Mrs. Minnie Pippin. The said E. A. Pippin also agrees to pay the counsel fees and costs, for which Mrs. Pippin is liable in said divorce suit ,said counsel fees amounting to eighty dollars.”

In consideration of this agreement and the execution of said deed, Mrs. Pippin agreed to return and live Avith her said husband as long as he should keep his promise to cease the use of intoxicating and spirituous liquors; to have the injunction in said divorce suit dissolved and continue said divorce suit for the period of two years, and if her said husband should keep his agreement as to intoxicating liquors during that time,, to dismiss her said suit. It was further agreed, that should Mrs. Pippin at any time during the period of two years, make affidavit that her said husband- had violated his promise as to the use of intoxicating liquors, or failed to support and maintain her as stipulated in said contract, and present and file the same with Messrs. H'ill & Hill, or either of them, that this should be sufficient- and perfect evidence of the fact, and said Hill & Hill should thereupon at once, deliver said deed to Mrs. Pippin as a perfect and complete conveyance, which agreement should be recorded in the office of the judge of probate of Greene county.

It is alleged that about Maich, 1900, Mrs. Pippin made an affidavit before an officer duly authorized to administer it, that her said husband’ had violated his said agreement not to. drink intoxicating liquors, and delivered the same to Messrs. 1-Iill &■ Hill, who immediately delivered said deed to her, and she, immediately filed said deed and affidavit in said probate office, where they were duly recorded.

The bill alleges that the said E. A. Pippin is insolvent, and lendeied himself so by the execution of said deed, and has remained insolvent ever since.

The- complainant, being a creditor of said E. A. Pippin, by his bill assails said deed as -a voluntary conveyance, made without valuable consideration, .and that-it is null and void as to complainant; that the property conveyed in said' deed is of the value of $1,500 in excess of the amount said Pippin had the right- to convey to his wife in lieu of alimony, and-as to such excess the deed was voluntary. ■ ' ; ■

The deed was not voluntary. A voluntary deed is one “founded merely and exclusively on. a good,, as distinguished from a valuable consideration, on motives of generosity and affection, rather than on a benefit received by the donor, or detriment, trouble, or prejudice to the donee. If the donor receives a benefit, or the do-nee suffers detriment, as the. consideration of the conveyance, the consideration is valuable,' not good merely. However, inadequate such consideration may be — however trivial the. benefit to the one, or the damage to the other, the conveyance is not voluntary.”—Bibb v. Freeman, 59 Ala. 615; Early & Lane v. Owens, 68 Ala. 174.

Tliat E. A. Pippin received value for tbe deed be executed to bis wife cannot be Avell questioned. He procured tbe dissolution of tbe injunction against bis making sale of any of bis property,, during tbe pendency of tbe suit against him by bis wife for a divorce. •• Tbe dissolution of tbe injunction was also a detriment to Mrs. Pippin, as slie placed tbe property in tbe bands .of lier husband, win» might thereby defeat tbe recovery from bim of alimony and maintenance. Tbe settlement of tbe affairs between husband and wife, such as existed between these parties, Avas a consideration for tbe execution of said deed of inestimable value, particularly to tbe husband, and one to be encouraged' and not condemned. —Barbour v. Barbour, 49 N. J. Eq. 429, 24 Atl. 227; Adams v. Adams, (N.Y.) 43 Am. Rep. 675; Hobbs v. Hull, 1 Cox Ch. Cas. 444; Jodrell v. Jodrell, 9 Beav. R. Ch. Cases, 45.

Tbe bill does not aArer that tbe deed was made “Avitli tbe intent to binder, delay or defraud” the defendant, or any creditor of tbe grantor, and even if tbe bill contained such an allegation, and it were proved, tbe sale could not be set aside at tbe instance of a creditor, where a valuable consideration bad been paid for the property, unless it Avere averred and shown, that- the purchaser knew of and participated in the fraudulent intent of tbe seller. Tbe burden of making this proof is on the attacking creditor.— Simmons v. Shelton, 112 Ala. 291, 21 South. 309, 57 Am. St. Rep. 39. “An embarrassed or insolvent debtor may sell bis property, and if tbe sale be an honest one, in good faith, and for a valuable consideration, it is not void.” —14 Am. & Eng. Ency. Law (2d Ed.) 204; Allen v. Riddle, 141 Ala. 621, 37 South. 680.

It is claimed that tbe value of tbe property conveyed was in excess of tbe alimony by $1,500. Tbe defendant was entitled, if successful in her divorce suit, to temporary and permanent alimony and to counsel fees. Por a wife to give up Avhat this one did, in entering into said contract,' and surrendering tbe rights she did, Avas a legitimate sirbject of contract betAveqn her and her husband. Even if she demanded a large price to again con-, ditionally submit herself to- a husband who hád blighted her life by debauchery in strong drink, on bis promise of reformation, taking tlie deed be executed to her as an .earnest of bis good faitb and fidelity, a court of equity would be very unwilling to set tbe deed aside, even if tbe consideration she demanded and received was more than tbe alimony that might have been awarded to her, if she had never entered into such a contract. Tbe consideration for such a surrender on her part was a matter of legitimate dealing between her and her husband, if fairly and not fraudulently conducted by her, and if she demanded much for so doing, the creditors of tbe husband have no right to complain of her. It was the same as a purchase for cash on her part, entered into' with no fraudulent intent, so far as appears.

It is charged that the grantor in said deed, conveyed substantially all his property to his wife. If that, were a fact, it made no difference under the averments of the bill, so far as she was concerned, but, by these aver-ments, it appears that said Pippin owned other' properties besides that embraced in said deed, to the value of between eight and nine hundred dollars.—Shealy v. Edwards, 75 Ala. 412; Inman v. Schloss, 122 Ala. 468, 25 South. 739.

No error appearing, the decree of the court is affirmed-

Affirmed.

Weakley, C. J., and Dowdell and Denson, JJ., concur.  