(90 So.) 5. Descent and distribution 72-Fraudulent, the transfer of J. L. Fields' interest in his conveyances 77-Release of beneficiary's father's estate should satisfy and discharge interest held supported by consideration. J. L. Fields' indebtedness of at least $3,700 Where the beneficiary of an undivided one- to his wife, the respondent Lee King Fields, fifth interest in an estate, which interest was who married J. L. Fields in January, 1916, worth not above $5,000, released or trans- and resided then and thereafter until he enferred his interest to the executrix in exchange for $1,700 cash, a good note for $1,600, and tered the army at Tullahoma, Tenn. The a cancellation of his indebtedness of $1,000 to ground for the cancellation of both instruthe estate, the release or transfer was support- ments was that they were made to hinder, ed by adequate consideration and was valid, so delay, or defraud complainant, who had, that a creditor of the beneficiary could not set prior to the execution of both instruments, aside that transfer and a subsequent transfer secured a large judgment against J. L. Fields by the executrix and the beneficiary to the in the courts of Tennessee. Failing relief on beneficiary's wife. the theory stated, the amended bill seeks, al Appeal from Circuit Court, Jefferson Coun- ternatively, to have these instruments dety; Horace Wilkinson, Judge, Bill by Gertrude Dale against James Leon Fields and others to set aside certain conveyances as a fraud on creditors or to declare the conveyance general assignment for the benefit of creditors. From a decree granting relief, respondents appeal. Reversed and rendered. Gertrude Dale procured judgment against James Leon Fields in a court of record in the state of Tennessee in September, 1916, in the sum of $7,500, on which a payment of $1,400 was made. James Leon Fields was the son of A. E. Fields, who died in Jefferson county, Ala., in 1916, leaving a will devising one-fifth interest in the estate to James L. Fields, subject to the life estate of the widow. On March 17, 1917, James L. Field conveyed his interest in the estate of his father to his wife, Mrs. Lee King Fields. On October 23, 1916, James L. Fields executed another conveyance to his mother, Mrs. Anna M. Fields. Harsh, Harsh & Harsh, of Birmingham, for appellants. clared general assignments, under Alabama Code, § 4295, the averment being that a transfer of all of J. L. Fields' property was thereby undertaken. The trial court canceled both instruments in response to the first aspect of the amended bill. [1] The answers of the respondents were but general denials of the allegations of fraud made against them; and the burden of proof rested upon the respondents to overcome in the evidence, clearly and specifically, the presumption of mala fides; and to show that a valuable consideration supported the insolvent husband's contracts with reference to his interest in his father's estate. Penney V. McCulloch, 134 Ala. 580, 33 South. 665; Prestridge v. Wallace, 155 Ala. 540, 46 South. 970, among others therein cited. As appears. the complainant assailed the validity of two instruments, viz. the one to Lee King Fields of date March 17, 1917, and the one to the executrix of date October 23, 1916; it being essential to cancel or qualify both contracts if complainant was shown to be entitled to relief. Regarding the instrument of date March 17, 1917, in its aspect as Tillman, Bradley & Baldwin and John S. a conveyance from J. L. Fields to his wife, Stone, all of Birmingham, for appellee. MCCLELLAN, J. This bill was filed by the appellee, an existing creditor of J. L. Fields, an insolvent debtor, against J. L. Fields, Ann Madora Fields, individually and as executrix of the estate of A. E. Fields, deceased, and Lee King Fields, the wife of J. L. Fields. The object of the bill as finally amended is, in one alternative, to cancel certain instruments, viz: One executed October 23, 1916, transferring to Ann Madora Fields, as executrix aforesaid, J. L. Fields' undivided interest in the estate of the testator, his father; and one executed March 17, 1917, wherein the executrix, J. L. Fields, and Lee King Fields undertook to invest J. L. Fields' wife, Lee King Fields, with J. L. Fields' undivided interest in the estate of A. E. Fields, deceased, the same interest purported to be affected by the mentioned writing executed October 23, 1918. The recited consideration of the instrument executed March 17, 1917, was that Lee King Fields: After careful review of the whole evidence, in the light of the fact that the burden of proof rested on the respondent Lee King Fields, the debtor's wife, our opinion is that the court below was justified in its conclusion that Mrs. Lee King Fields had not discharged the stated burden of proof, and that the complainant was entitled to have the instrument of date March 17, 1917, canceled and wholly annulled. That J. L. Fields absorbed his wife's entire estate, inherited from her father previous to marriage. is indubitably established. However, the establishment of this fact does not itself vindicate the validity of the instrument of March 17, 1917, when assailed as it is by an existing creditor of an insolvent debtor. The wife's claim is that just prior to her marriage to J. L. Fields he promised to reimburse her in the funds she advanced or loaned him, his father being then in life, and, so far as shown, without any knowledge of this rather premature assurance by J. L. Fields. It is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not satisfactorily shown that J. L. Fields reaflirmed this promise after his father's death on May 18, 1916, nor is any allusion made to it in the instrument of date March 17, 1917. No note or other obligation was ever executed by J. L. Fields evidencing these asserted loans by his wife to him. The evidence of Mrs. Fields leaves in great doubt the amount she advanced him prior to their marriage. That the amount then actually advanced was comparatively small seems clear. On the other hand, the conclusion is inescapable that the larger proportion of his receipts from her was after their marriage. According to her testimony, she sold her real property, and, aside from what she and her husband consumed as board, etc., at her sister's hotel, she turned the remainder of the purchase money over to her husband, that he might discharge pressing demands. [2] The agreement asserted by Mrs. Fields to have been made before marriage was entered into in Tennessee, where the parties resided. It was a Tennessee contract, governed by the common law, which, in the absence of any evidence to the contrary, is presumed to have there prevailed, and so notwithstanding there was included in its terms the husband's parol promise to transfer to Lee King, later becoming his wife, his interest in his then surviving father's estate in Alabama. [3] Unless changed by statute, at common law the right and title to personal property of a wife passes to the husband; and the proceeds of a sale of the wife's realty, with the husband's assent, constitutes the proceeds personal property, unless a different status therefor was defined by settlement or contract directing its future use. Early v. Owens, 68 Ala. 171; Castleman v. Jeffries, 60 Ala. 380, 389, 390; Colbert v. Daniel, 32 Ala. 314, 327. In the circumstances indicated such personal property of the wife did not, at common law, afford a valuable consideration for the contractual postnuptial promise of the husband. Early v. Owens, supra; Bump's Fraud. Conv. (4th Ed.) § 280; 21 Cyc. pp. 1287, 1288. funds induced her, quite naturally, to advance money, each of them entertaining the mere hope and expectation that when his father died the husband might be able to restore the then comparatively small sum turned over to the husband. Mrs. Fields did not. in our opinion, establish the bona fides of the indebtedness she asserted against her husband. However, if we are mistaken in the view stated, there is another consideration that is conclusive against the validity of the instrument of date March 17, 1917; and the statement of our judgment in this connection will serve to present the grounds of our conclusion that the court below erred in canceling, annulling, the instrument (it is not exhibited in the transcript) of date October 23, 1916, whereby J. L. Fields "released" to the executrix his interest in his father's estate. [5] The evidence is practically undisputed that on or about October 23, 1916, J. L. Fields, whose financial necessities were then great and pressing, received from the executrix $1,700 in cash and a "good note," for $1,600, assets of the estate, and a cancellation of his indebtedness of $1,000 to his father's estate, in consideration of the "release" or transfer of his interest in his father's estate. According to a fair estimate, the net value (in 1916) of a one-fifth interest in A. E. Fields' estate-considering the character of title (tax titles) his father held in the larger part of the Blount county lands, much of which was unimproved and inaccessible, the indebtedness existing against the estate, and the obligation imposed upon the estate by the terms of A. E. Fields' will-was not above $5,000. Hence the amount thus received by J. L. Fields for the "release" or transfer of his undivided interest in A. E. Fields' estate was not at all out of proportion to the value of his interest, if, indeed, it did not actually, in 1916, exceed its value. No invalidating fraud is shown to have affected the contract between the executrix and J. L. Fields. The recital by Mr. Tatum of what J. L. Fields said was the fraudulent design of his wife and himself in executing the later instru[4] The prenuptial promise Mrs. Fields as- ment of March 17, 1917-matter to which no serts evinced no purpose to make their mar- | objection appears to have been interposed by riage or their agreement to marry a part of Lee King Fields-does not refer to the conthe consideration for the loan then made. It tract of October 23, 1916, between the execudid not purport to give assurance against trix and J. L. Fields, and hence is without future loans of the wife's money after mar-bearing or effect upon the earlier contract. riage. It was not, as stated, reduced to The "release" or transfer of date October 23, writing. If it had satisfactory evidential support at all, Mrs. Fields' claims of indebtedness against her husband must be referred to the prenuptial promise she asserts. It can have no support in a promise postnuptial, as respects her personal property, money, advanced while they were husband and wife. The only reasonable view projected by Mrs. Fields' evidence is that in the atmosphere of approaching marriage the husband's need of 1916, is not invalid; and, being supported by contemporaneously paid consideration, it is, of course, not a general assignment. If the instrument of date March 17, 1917, is regarded as a distinct contract between husband and wife, J. L. Fields and Lee King Fields, omitting significance to the joinder therein of the executrix, Ann Madora Fields, J. L. Fields had no interest in his father's estate subject to transfer, assignment, or con (90 So.) veyance on March 17, 1917, he having there- brings this suit upon said certificate, being tofore, on October 23, 1916, "released" or designated the beneficiary therein. From a transferred whatever interest he had in the judgment for the plaintiff, defendant prosestate of his father to the executrix thereof.ecutes this appeal. What right, title or interest, if any, Lee The principal defense relied upon in the King Fields acquired from the executrix by court below, and pressed for consideration the instrument of March 17, 1917, is a ques- here, was as follows: O. C. Tucker, at the tion not necessary to be considered or decid- time of the issuance of the certificate, was a ed on this appeal. The contract of October car repairer, and obtained the rate of insur23, 1916, being valid and effective, the com- ance accordingly. In December, 1917, he plainant is not entitled to the relief sought. changed his occupation to that of switchman, The decree appealed from is reversed. A and in November, 1918, met his death by acdecree will be here rendered denying relief to cident while engaged in his work as switchcomplainant and dismissing the amended bill. man. The position of switchman is designatReversed and rendered. ed in the by-laws as a hazardous occupation,' requiring additional premium rate. When ANDERSON, C. J., and SOMERVILLE Tucker changed his occupation to that of and THOMAS, JJ., concur. switchman no notice was given the local camp, or any officer or agent thereof, or of the defendant organization, nor was any additional assessment or rate paid. It was éxpressly provided that upon such change such SOVEREIGN CAMP, W. O. W., v. TUCKER. was his (insured's) duty, and that upon fail (6 Div. 276.) (Supreme Court of Alabama. Oct. 27, 1921.) Insurance ~755(3) Advice by clerk, on learning after insured's death of change to hazardous job, to remit extra premium to home office not waiver of requirement of no tice of change and payment of extra pre mium. ure to do so the certificate of insurance would become void. The various provisions of the laws of the order, and of the certifi cate and agreement of insured to abide thereby, and the binding force thereof, all appear in the following decisions of this court, wherein this organization was a party liti gant, and need no repetition here: Sov. In view of Acts 1911, p. 700, § 20, where, Camp, W. O. W., v. Virgie Allen (Ala. Sup.) after death of member of fraternal beneficiary 89 South. 58: W. O. W. v. Alford (Ala. Sup.) society, the clerk of the society's local camp 89 South. 528; Sov. Camp, W. O. W., v. Eastfor the first time learned from the member's is (Ala. Sup.) 89 South. 63; W. O. W. v. widow that he had changed his occupation to Maynor (Ala. Sup.) 89 South. 750. one of a hazardous nature, requiring notice and additional premium, the clerk's friendly advice to the widow that she remit the extra premium to the society's attorney at the home office, and that if it was accepted it would be all right, was not a waiver of the policy provision requiring notice of change and payment of additional premium; her tender being promptly returned by the home office. But, conceding that the certificate, under these undisputed facts in connection with the laws of the order, was void, appellee insists there has been a waiver of these provisions by the clerk of the local camp, one Priester. Section 20 of the act of 1911, p. 700, is found set out in the foregoing deci sion, and these authorities disclose the inAppeal from Circuit Court, Jefferson Coun- sufficiency of this insistence as an answer to ty; J. C. B. Gwin, Judge. Action by Ethel L. Tucker against the Sovereign Camp, Woodmen of the World, for the beneficiary life certificate issued up on the life of her husband. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded. C. H. Roquemore, of Montgomery, for appellant. the defense interposed. The only waiver relied upon, however, is that the plaintiff, after the death of her husband, called upon Priester, the clerk of the local camp, and then for the first time the clerk learned there had been a change of occupation to one of a hazardous nature requiring notice and additional premium, and, upon being asked by plaintiff advice as to what to do, he told her to send the amount of the additional assessment, $3.60, to the general attorney of defendant order in NeGARDNER, J. Appellant is a fraternal braska, and that if it was accepted it would beneciary society, and issues to its members be all right, but "if they did not it would benefit certificates of insurance. O. C. Tuck- be all wrong." She forwarded the amount er became a member of this fraternal organ-pursuant to the clerk's suggestion, and it was ization, and in June, 1916, there was issued very promptly returned. The clerk of the to him a certificate of insurance in the sum local camp did not accept or receive this of $1,000, Ethel L. Tucker, his wife, who sum, nor was it accepted at the home office Chas. A. Calhoun and John T. Glover, both of Birmingham, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of defendant. The local clerk merely gave friendly advice, which was followed, but without result. No waiver in any event has been shown. Sov. Camp., W. O. W., v. Allen, supra. All premiums paid after change of occupation were tendered to plaintiff, and, upon being declined, were paid into court. The affirmative charge should have been given at defendant's request, and for its refusal the judgment is reversed, and the cause remanded. Reversed and remanded. Russell & Johnson, of Oneonta, for appellant. Ward, Nash & Fendley, of Oneonta, for appellee. SAYRE, J. Plaintiff (appellee) sued defendant in trespass and trover, and showed that early in 1919 defendant had gathered and converted to his own use crops planted by plaintiff on a certain 40-acre tract in the spring of 1918. Plaintiff further showed that on and before December 23, 1917. his broth ANDERSON, C. J., and SAYRE and MIL-er, W. J. King, had been in possession of the LER, JJ., concur. WESTON V. KING. (6 Div. 483.) (Supreme Court of Alabama. Oct. 27, 1921). 1. Judgment 684-Ejectment judgment evidence against defendant's lessee of plaintiff's title from commencement of action. By reason of the privity between lessor and lessee, judgment for plaintiff in ejectment is, in a subsequent action in trespass and trover against him by the lessee of the ejectment defendant, evidence of the ejectment plaintiff's title from the commencement of his action. 2. Appeal and error 909(2)-Ejectment presumed under facts commenced before defendant's lessee took possession, relative to effect of judgment as evidence. The date when an action in ejectment was commenced, which is the time from which judgment for plaintiff therein evidences his title, not being shown in a subsequent action of trespass and trover against him by the ejectment defendant's lessee, may be assumed to have been prior to delivery of possession to the tenant under his rental contract, in view of the ejectment action having been against the lessor alone, and the fact that the lessee submitted to dispossession by a writ against the lessor alone. 3. Ejectment 114-To prevent crops of defendant's tenant passing with land, bond under statute to delay issuance of writ of possession necessary. Resort not having been had to the remedy under Code 1907, § 3856, of giving bond for rent, to prevent writ of possession being issued till the end of the year to a successful plaintiff in ejectment, where a crop was growing, the crop passed with the land, and the defendant's tenant, who took possession after the commencement of the ejectment action, may not maintain an action in trespass and trover against the plaintiff in ejectment on account of gathering and converting to his own use the crop planted by the tenant. tract, and in February, 1918, had rented and delivered the tract to him for cultivation during the current year. In March, 1918, plaintiff was called to the military service of the United States and thereupon left the crop in charge of another brother, James King, who continued to cultivate the same to maturity. Plaintiff remained in the army until the spring of 1920. For defendant the evidence showed without conflict that, August 29, 1918, defendant recovered judgment in an action of ejectment against W. J. King for the tract in question, and in September of the same year was put in possession by a writ in the hands of the sheriff; that thereafter, in November, 1918, defendant conveyed the land to one Whited, retaining, however, the right "to enter upon said lands and take therefrom the rents of said crop grown on said lands during the year 1918." Whited remained in possession under his purchase down to the time of the trial. [1-3] Plaintiff held the land on which the crops were raised in privity with W. J. King, his lessor. The judgment for defendant was evidence of his title from the date of the commencement of the action. Lyons v. Stickney, 170 Ala. 134, 54 South. 496. But that date was not shown. However, from the fact that the action in ejectment was brought against W. J. King alone, and that plaintiff, through his agent in possession in September, 1919, submitted to dispossession by a writ against W. J. King alone, we think it may be safely assumed that the action was brought prior to the delivery of possession to plaintiff under his rental contract. On the foregoing assumption, there being no resort by the plaintiff, or his agent in possession, to the remedial provision of section 3856 of the Code of 1907, the crops on the land went with the land, and, under the authority of Carlisle v. Killebrew, 89 Ala. 329. 6 South. 756, 6 L. R. A. 617, and the cases there cited, plaintiff was not entitled to Appeal from Circuit Court, Blount County; maintain the present action. The court O. A. Steele, Judge. Action by John W. King against A. A. Weston. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded. erred in giving the general affirmative charge requested by plaintiff. Reversed and remanded. ANDERSON, C. J., and GARDNER and MILLER, JJ., concur. (90 So.) WOODWARD IRON CO. v. BRADFORD. (6 Div. 458.) (Supreme Court of Alabama. Oct. 13, 1921.) 1. Certiorari -Writ goes only to questions concerning jurisdiction of subordinate tribunal and legality of its proceedings. The supervisory power of a superior over an inferior legal tribunal by means of a common-law writ of certiorari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings, the office of the writ being to correct errors of law apparent on the face of the record, and not to review conclusions of fact unless specially authorized by statute. 2. Master and servant 412-Judgment under Compensation Act reviewable on common-law certiorari. direct a commutation or lump sum settlement with consent of the parties. 7. Master and servant 420-Allowance of attorney's fees to guardian ad litem for minor compensation claimant authorized. Where a minor claimant is brought in at the suggestion of the defendant in a suit for death under the Workmen's Compensation Act, the court is authorized to appoint a guardian ad litem to represent him, and may allow the guardian attorney's fees within the limitation fixed by section 7. 8. Marriage 11-Statutory marriage before husband was divorced from first wife was void. Where a decree of divorce to a husband from his first wife was not rendered until after his marriage to his second wife, the statutory marriage to his second wife was void. 9. Master and servant ~388 Common-law "marriage" within Compensation Act. The Workmen's Compensation Act in the use of the words "husband and wife" as well as "marriage" includes common-law marriages. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Marriage.] To review a judgment of the circuit court, under the Workmen's Compensation Act, sections 21 and 28 of which provide for appeal by certiorari, the aggrieved party must within the 30 days allowed apply for a common-law writ of certiorari, which application must set forth the questions of law sought to be reviewed, which must be apparent upon the record, and the appellate court will consider questions of law so presented, but will not review conclusions of the judge supported by any of the evidence as set out or in the application of the law to disputed facts or objections to evidence. 3. Appeal and error -Legislature may lim-ried compensation claimant, the variance beit, restrict, or abolish right of appeal. Appeals to the Supreme Court or Court of Appeals are subject to legislative control and can be limited, restricted, or abolished by the Legislature so long as it does not contravene 10. Master and servant 405 (5)-Finding of deceased employé's divorce justified by evidence in compensation case. In the absence of evidence that deceased employé ever had but one wife before he mar tween the given name of his first wife de- N the authority of the Supreme Court to super- deceased had been lawfully E. 308gment or intend and control inferior tribunals as provided by Const. 1901, § 140. Appeal from Circuit Court, Jefferson County; J. C. B. Gwynn, Judge. Petition by the Woodward Iron Company for common-law certiorari to review and revise the decisions and findings in proceedings by Irene Bradford under the Workmen's Compensation Act against the Woodward Iron Company, in which James Bradford was 5. Master and servant 420-Attorney's fees made a party claimant, or, in the alternalimited by Compensation Act. Where the employee and the employer elect to adopt the Workmen's Compensation Act, section 7 of which provides that attorney's fees shall not be more than 10 per cent. of the amount recovered, they are bound by its provisions and allowance of 20 per cent. is unauthorized. 6. Master and servant 420-Attorney's fees payable in solido not allowable on compensation payable in installments. Under the Workmen's Compensation Act, section 7 of which provides that the court may fix attorney's fees not to exceed 10 per cent. and the "manner of its payment," the court may not make the fees payable in solido contrary to the wishes of the employer where the compensation for death is paid in installments, notwithstanding its power under section 23 to tive, an appeal from the decision. Appeal dismissed. Certiorari awarded, and cause reversed and remanded. Huey & Welch, of Bessemer, for appellant. Beddow & Oberdorfer, of Birmingham, for appellee. ANDERSON, C. J. This is a proceeding to review a judgment, order, or decree of the circuit court upon a claim which arose under the "Workmen's Compensation Act" (Acts 1919, pp. 206 to 239). Said review is sought both upon an appeal and by a petition for certiorari, in the event an appeal does not lie. All that we find in the act with reference to an appeal or review is the following expression in section 21: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |