error to refuse to submit the issue that defendant was entitled to recover if the jury found that the deed had been procured by fraud. Appeal from circuit court, Coahoma county; F. E. Larkin, Judge. "To be officially reported." Action of unlawful entry and detainer by Wooten & Agee against Ben Culp. From a judgment of the circuit court in favor of plaintiffs, the defendant appeals. Reversed. Fitzgerald & Maynard, for appellant. Rucks Yerger, for appellees. CALHOON, J. Wooten & Agee brought their action of unlawful entry and detainer against Culp for the possession of certain land, lost their case before the court of the justice of the peace, appealed to the circuit court, won there, and Culp appeals to this court. Under the law once existing here, a deed absolute on its face might be shown, by parol, to be in fact a mortgage to secure a debt. Section 1299 of the Code of 1880, brought forward in section 4233 of the Code of 1892, introduced a modification of this doctrine by providing that it should apply only to instances where the maker of the deed parted with the possession of the property, or where fraud was not shown in procuring the instrument. The defenses which Culp makes to the action are that the absolute deed which he executed was designed to be a mortgage, and that its execution was obtained by fraud; and he claims that he never parted with the possession of the land. Of course if he never parted with possession he may, under the law as modified, show by parol that the conveyance was designed to be a mortgage; and whether he parted with the possession or not, he may show that it was procured by fraud. There is evidence in this record tending to show that possession was never parted with. The land was Culp's homestead, and was all the land he owned in the world. The fact that he and his wife quit it, for a year or two, to cultivate rented land, to better their condition, with the purpose to return, was no abandonment, where they left some of their children in occupation. This last fact was possession in this case, regardless of any technical questions of abandonment of homesteads, which really cut no figure in this record on the matter of parting with possession under the clause in our statute of frauds above referred to. In any view of the testimony here, it is stating the case very mildly to say that, on the evidence as a whole, it is not certain that appellant would have lost below if the jury had had to act on that isolated question. In the next place, whatever the real facts may be, it cannot be gainsaid that there is testimony tending to show that this poor illiterate negro was the victim of a fraud, by which he was deprived of everything he had on earth of land and per sonal property, accomplished by a violation of trust and confidence. Finally, there is evidence in this record that Culp understood the instrument to have the effect only of a mortgage, with five years to him in which to redeem. That he had this understanding from assurances given him by appellees is also largely supported by evidence. Both these propositions are supported by the testimony of Culp and his wife, and that of reputable disinterested witnesses, who heard part of the colloquy leading up to the execution of the instrument by Culp and his wife, whose joinder in it could have been required by Wooten & Agee for no other reason than that they recognized that it was the homestead which was being conveyed. The two propositions mentioned might also be argued to be sustained by the probabilities of the transaction. Culp owed Wooten & Agee, as they say, $1,480, but, as he says, about $1,000. He says he agreed to put in their hands all of his personalty for them to sell and put the proceeds to his credit, and that the absolute deed was to secure any possible balance, to be redeemable by payment of $100 per annum. He estimates the personalty which he turned over to them as worth in fact more than the debt, while they do not make any estimate, nor show what they realized from its sale. He estimates the land conveyed to them at $2,000. It might be concluded from the proof that the land alone was worth at least the whole amount of the debt. It might be inferable from the record, according to the rationale of human transactions, that Wooten & Agee wanted this negro's land in preference to the payment of his debt. There was disinterested testimony that they appealed to his confidence in them, assured him it would be all right, and thus induced him and his wife to sign the deed. At the same time they gave him this document: "Friar's Point, Miss., June 12th, 1900. It is hereby agreed that all the personal property turned over to Wooten & Agee is to be sold at best advantage, and place to the credit of Ben Culp on a/c. [Signed] Wooten & Agee, by Z. D. Agee." The deed they took from the negro recites for its consideration $1,000 paid "to satisfy in part the indebtedness of said second parties" to them. They say they then rented the place to him for $100 for one year, and took his rent note for $125, the extra $25 being for a mare they say he had not turned over; and yet the rental value of this land is $7 per acre. They testify also that, when Culp went to see them about staying on the place and paying his debt, they informed him that he had "balanced his account." This balancing was by getting all the negro had, and, according to him, by getting property, real and personal, of the value far in excess of the debt. Certain it is there is no showing of the account on which the sale of the personalty was to go “as a credit," and there is no further explanation of the fact that the negro stripped himself of all he had than that he did it to balance his account, with the only proviso that he should have only the overplus from the sales of the personalty. It might be asked if these sales, added to the $1,000 for the land, balanced his account to a cent. Wooten & Agee totally deny any such talk in the chancery clerk's office when the deed was executed, about this instrument being a security only, as is testified to by Ben Culp, Judy Culp, Fitzgerald, and Hooker. With the case in this situation the court refused an instruction, asked by Culp's counsel, that the jury should find for him if they believed from the evidence that he did not part with the possession of the land, and that the deed was agreed to be a security for the debt, or that it was procured by fraud. This refusal we think was error. The jury should have been allowed to pass on the question of whether the execution of the instrument was procured by fraud. If there was such fraud, it is immaterial whether Culp did or did not part with the possession of the land. The plaintiffs' third instruction, we think, should not have been given. It charges the jury to find for plaintiffs unless they believed from the evidence that Culp "had never given up possession of said place to said plaintiffs." This is too narrow, in that it excludes any consideration of any question of fraud. We are of opinion, also, that there is error in giving plaintiffs' fourth charge. Because Wooten & Agee intended the instrument to be a simple deed, and not a security for debt, does not warrant recovery if there was fraud, or if possession was not parted with, and Culp was led to believe by their assurances that it was redeemable. Reversed and remanded. SUPREME LODGE KNIGHTS AND LADIES OF HONOR v. WING. (Supreme Court of Alabama. Nov. 28, 1901.) EQUITY-PLEA. Where a bill is framed upon two theories, a plea which, although filed to the bill as a whole, sets up facts in bar of a recovery by the plaintiff upon only one of the theories of the bill, but does not extend to or cover the whole bill, is bad, and insufficient as an answer to such bill. Appeal from chancery court, Mobile county: Thomas H. Smith, Chancellor. Bill by Sadie E. Wing against the Supreme Lodge Knights and Ladies of Honor. Decree for plaintiff, and defendant appeals. Affirmed. The purpose of the bill was to relieve complainant of a technical failure or omission by H. J. Welch to comply with a by-law of defendant in reference to changing the beneficiary named in her relief certificate, and to decree the payment of the money to com plainant. The facts as shown by the bill, succinctly stated, are as follows: In 1878, the defendant was granted a charter by the state of Kentucky to insure the lives of its members by its policies, or "Relief Fund Certificates," payable to the member's family, or as he or she may direct. In February, 1880, H. J. Welch became a member of the defendant, and there was issued to her a relief certificate for $1,000, payable to G. W. Welch, her husband, who died in January, 1900. On the back of this certificate was printed a form for the changing of the beneficiary. At the time of the issuance of this certificate, the only law of the defendant prescribing how a member may change the beneficiary was this: "Relief fund certificates shall be issued to all members who have complied with the provisions of sections 1 and 4, law 11. A relief certificate shall not be changed, nor a new one issued, until the original is surrendered: provided, that when a relief fund certificate is lost or destroyed. a new one may be issued upon a certificate signed by the protector and attested by the secretary, with the seal of the lodge attached, setting forth the fact. The fee for a new certificate shall be fifty cents." Said H. J. Welch continued a member, in good standing, until her death, May 2, 1900. Said H. J. Welch had no children, and no known kin. Complainant was a member of H. J. Welch's family, and her ward,-said H. J. Welch having taken out letters of guardianship over complainant's person in 1896,-and was in a measure dependent upon said H. J. Welch. Subsequent to the issuance of said certificate, defendant adopted a by-law requiring members who desired to name some one as a beneficiary not related to them to make affidavit of the dependency of such beneficiary upon them. This later rule or by-law was not complied with by said H. J. Welch, and the bill sets forth the reason why it was not. The bill in the first place sets forth facts which complainant insists show that this later by-law was not operative upon the original contract of membership made by defendant with said Welch, to wit, that said H. J. Welch had a right to name any per son, although not related to nor dependent upon her, the beneficiary of her relief fund certificate; and, besides, as complainant was the only member of H. J. Welch's family after the death of Geo. W. Welch, her husband, complainant was, by virtue of that relation, under the charter of defendant, entitled to the money, even though no change was made in the certificate. The bill then goes on to show that said H. J. Welch surrendered her original certificate, with the blank form printed on the back thereof filled in with complainant's name as beneficiary; that she paid the 50 cents for a new certificate; and this change of beneficiary was attested by the secretary of the local lodge, under the seal thereof, and was by the secretary of the local lodge sent on to the su preme secretary, who refused to issue the new certificate unless said H. J. Welch would make an affidavit of complainant's dependency upon her. The bill then shows that the failure of said H. J. Welch to make this affidavit was because that, after surrendering said original certificate, and before the supreme secretary made this demand, she became so desperately ill, mentally and physically, that she was never able to do so, and died without ever being able to comply with such demand; and, further, that there were no relatives of H. J. Welch trying to collect the claim on the benefit certificate. The prayer of the bill was that the complainant be decreed to be a beneficiary of such relief fund certificate, and entitled to the money due thereon, and that the defendant be required to pay said money to the complainant. The defendant filed a plea to the whole bill, which sets up in bar to all the relief under any and each phase of the bill the failure of said H. J. Welch to make the affidavit as required by the by-laws of the order. This plea sets out these by-laws, and avers that they were not complied with by the said H. J. Welch. The plea does not confess and avoid, nor does it deny, the averments of the bill as to this second phase showing why said H. J. Welch did not make the required affidavit. B. B. Boone, for appellant. L. H. & E. W. Faith, for appellee. TYSON, J. This appeal is prosecuted to review a decree overruling respondent's plea. The only matter for our consideration is the sufficiency of that plea. The defense attempted to be invoked by it goes to the entire bill. The bill is framed upon two theories. The first is that the by-laws set up in the plea, and shown by the bill, were not binding upon Mrs. Welch, the holder of the "relief fund certificate" sought to be collected. The second is, admitting the binding force of the by-laws, a noncompliance by Mrs. Welch with them was excusable under the circumstances alleged therein. The plea is but a reiteration of the facts alleged in support of the first theory of the bill. In other words, it simply invokes the efficaciousness of the by-laws, which the bill in the first aspect denies were obligatory, and does not profess to deny or confess and avoid the facts alleged in support of the other phase of the bill. It, therefore, does not extend to or cover the whole bill, and is bad. Story, Eq. Pl. (10th Ed.) § 693; 16 Enc. Pl. & Prac. 604; Piatt v. Oliver, 1 McLean, 303, Fed. Cas. No. 11,114; Allen v. Thorp, 4 Johns. Ch. 693. Indeed, it might be said to extend to or cover no part of the bill, for the reason that it fails to traverse or confess and avoid the facts alleged in support of the first phase of the case as made by the bill. It cannot be made to perform the office of a demurrer, and in that way raise an issue of law. This is practically all the plea does with respect to the facts relied upon to support the first theory of complainant's bill. Affirmed. TEAGUE et al. v. BASS. (Supreme Court of Alabama. Nov. 27, 1901.) APPEAL-NEW TRIAL-FRAUDULENT CONVEY ANCE-SALE-RETAINING POSSESSION. 1. On an appeal from a judgment refusing a new trial, on the ground that the evidence was not sufficient to support the verdict, or that the verdict was contrary to the evidence, if, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust, the judgment refusing the new trial will be reversed. 2. When a conveyance of a stock of goods by a debtor is assailed upon the ground of fraud, the burden of proof is upon the purchaser to show, by clear and satisfactory proof, that the transaction was characterized by good faith, and entirely free from all intent to hinder, delay, or defraud any one or more of the creditors of the vendor. 3. A solvent debtor, who converts his property into money for the purpose of putting it beyond the reach of his creditors, is guilty of a fraudulent sale of property; and if the purchaser with knowledge of such fraudulent purpose, or with knowledge or notice of facts calculated to put a reasonable man on inquiry which, if followed up, would lead to a discovery of a fraudulent intent, pays a cash consideration to such purchaser, he becomes a party to the fraudulent transaction, and acquires no title as against the debtor's creditors. 4. Where a sale of a stock of goods by a debtor is assailed by one of his creditors, the unexplained retention of the possession of the goods is a badge of fraud, going to the fact of sale and the sufficiency of the consideration, and casts upon the purchaser the burden of explaining the vendor's continued possession, so as to make the facts consistent with the bona fides of the sale. Appeal from circuit court, Chambers county; N. D. Denson, Judge. Action by W. Q. Bass against Teague, Barnett & Co. Judgment for plaintiff, and defendants appeal. Reversed. E. M. Oliver and Horace Stringfellow, for appellants. Barnes & Duke, for appellee. DOWDELL, J. The appellee, Bass, instituted suit in trespass against appellants for the wrongful taking of plaintiff's goods, which were levied upon under an attachment sued out by appellants against the firm of Satterwhite & Trammell, who were their debtors. The appellee claimed to have purchased the stock of goods levied upon for value from Satterwhite & Trammell. Verdict and judgment were rendered in favor of said Bass against appellants, and thereafter a motion was made by appellants for a new trial, principally upon the grounds that the verdict was contrary to the evidence, and that the evidence was insufficient to support the verdict. This motion was overruled by the court, and hence this appeal. Although there are several assign ments of error, the only one really insisted on in argument by counsel for appellant is that which relates to the ruling of the court on the motion for a new trial. A rule for the guidance of the court in such cases was laid down in Cobb v. Malone, 92 Ala. 630, 9 South. 740, wherein it is stated that "the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to convince the court that it is wrong and unjust." It is also stated that this rule is not inflexible, but subject to exceptions and qualifications dependent upon peculiar circumstances. This qualification, however, can mean nothing more nor less than that the court will not reverse a refusal to grant a motion for a new trial upon the grounds above stated, unless it is clearly of the opinion that the verdict of the jury is wrong and unjust. As was said in the case of Railway Co. v. Chambliss, 97 Ala. 180, 11 South. 900: "We are of opinion that the verdict of the jury was contrary to the evidence, and that a new trial should have been granted. It is clear that the plaintiff relied for a recovery exclusively upon the theory that by reason of the defect in the switch, when the wheels supporting the engine struck the rails of the switch, the lever of the switch, which he was at the time trying to press down, was made to fly up with so much force and suddenness that it threw him in front of the engine. The testimony of the witness Sharp, who was examined as an expert, tended to show that this was possible, but the testimony in rebuttal on this point so greatly predominates, and is of such a character, that we are clearly of the opinion that the case is fully within the rule declared in Cobb v. Malone,"-quoting the rule laid down in that case. Again, in the case of Sheppard v. Dowling, 103 Ala. 566, 15 South. 848, this court, after stating the other phases of the testimony upon which the jury might have found for the plaintiff, said: "We have carefully considered the testimony with reference to each of these propositions, and, without going into details, reached the conclusion that a new trial ought to have been granted." Again, in the case of Railway Co. v. Clay, 108 Ala. 236, 19 South. 309, the plaintiff's witness testified that the train had stopped to discharge passengers, and that while they, with deceased, were attempting to board it, the train started with a jerk, throwing deceased off. The defendant's witness testified that the train was in motion when the deceased tried to board it. This court said, notwithstanding this conflict in the testimony: "The preponderance of the evidence before us was so greatly in favor of the defendant as, in our judgment, presented a case for a new trial." Again, in the case of Davis v. Miller, 109 Ala. 600, 19 South. 704, this court said: "After according all reasonable presumptions of the correctness of the verdict and judgment below, it is our conviction that the preponderance of the evidence is so decided in favor of the foregoing conclusions of fact, and therefore against the verdict, as to leave really no substantial deübt that the verdict is wrong and unjust, and to impose the duty upon us of reversing the judgment and setting aside the verdict." The evidence shows that said Satterwhite & Trammell were merchants doing business at Five Points, in Chambers county. The appellee was a clerk in their store, under a contract with them for a term of one year, at $50 a month for the fall and winter months, and $25 per month for the spring and summer, or a total of $450 a year. This contract was entered into in September. The sale of the stock of goods in question by Satterwhite & Trammell to appellee, their clerk, was made a little over a month after he (Bass), the appellee, entered into their employment as such clerk. The stock of goods consisted mainly in new goods which had just been received by said firm, and carried from the depot into the house known as the "Ward Building," a different building from that in which they were then doing business. That the alleged sale occurred just four days prior to the levy of the writ of attachment. That the terms of said sale were cash, and the price fixed at 30 per cent. discount on the cost of the goods. The bona fides of the sale under which the appellee claimed title to the stock of goods levied on being assailed, the burden of proof was upon him to show, by clear and satisfactory proof, that the transaction was characterized by good faith, and entirely free from all intent to hinder, delay, or defraud any one or more of the creditors of the vendors. We have carefully considered the whole evidence, and we are clearly of the opinion that upon this question the verdict of the jury was wrong and unjust, and that appellants are justly entitled to another trial. As the cause must be remanded for another trial, we refrain from discussing the evidence in detail, lest in so doing the rights of parties might thereby be prejudiced upon a second trial. Sufficient to say that there were a number of facts and circumstances shown by the evidence going to the impeachment of the bona fides of the sale, which were either so unsatisfactorily explained or not accounted for at all as, in our judgment, to leave the great weight of the evidence against the verdict of the jury on the question of fraud in the sale. It is urged by counsel for appellee that there is no evidence whatever of the insolvency of Satterwhite & Trammell. This may be true, and still they may be guilty of fraud as against their creditors. It has been decided by this court, and the soundness of the proposition is beyond question, that a debtor, possessed of ample means to settle the demands against him, as well as an insolvent debtor, may be guilty of a fraudulent intent in the sale of his property, by converting it into money for the purpose of putting it beyond the reach of his creditors, and a vendee who purchased with a knowledge of such fraudulent intent, or with knowledge or notice of facts calculated to put a reasonable man on inquiry which if followed up would lead to a discovery of the fraudulent intent, will not be protected. Carter v. O'Bryan, 105 Ala. 316, 16 South. 894; Beall v. Lehman, Durr & Co., 110 Ala. 450, 18 South. 230. Without prejudicing the rights of the appellee upon another trial, we may refer to the evidence of Sheriff Gilder, who testified in the case, and whose evidence was not contradicted, and the verdict of the jury was clearly contrary to this evidence, which was that on the morning of the day that he levied the writ of attachment, when he went to the store for the purpose of making the levy, he found Satterwhite, one of the vendors of appellee, in the store behind the counter, handling the goods. There was no evidence of any lease of the storehouse to appellee, nor any attempt to explain or account for Satterwhite's being in the store behind the counter, and apparently and ostensibly in possession of said goods. The law is well settled that "the unexplained retention of the possession of personal property, which it is alleged has been sold to the creditor in payment of a debt by the vendor, is, when the transaction is drawn into question by another creditor, a badge of fraud going to the fact of sale and the sufficiency of the consideration, casting upon the purchaser the onus of explaining the vendor's continued possession, so as to make the fact consist with the bona fides of the sale." Ullman v. Myrick, 93 Ala. 537, 8 South. 410. As suggested in argument by counsel, the continued possession indicates a continuance of interest in the goods sold in the vendor; so, also, does his presence, and handling the goods sold, in a place occupied by those who exercise the rights of ownership over them, indicate a continuance of interest in them. The difference between such case and an actual retention of possession is not in principle, but only in degree. The difference is that mere presence behind the counter and handling the goods after the alleged sale is the more readily explained, but, in the absence of all explanation, the presumption must be the same, even as is the principle. As stated by Mr. Bump in his work on Fraudulent Conveyances: "The possession of the vendee must be continuous. There must be not only a delivery, but a continuing possession. It is the policy and very foundation of the rule to prevent what is the object of fraudulent conveyances, to secure the beneficial use of the property by the debtor." Bump, Fraud. Conv. (2d Ed.) p. 133; Waite, Fraud. Conv. § 237. "Where the law casts the bur den of proof upon a party, if he does not offer evidence of the fact for all the purposes of the particular case, the nonexistence of the fact must be presumed." Leliman v. McQueen, 65 Ala. 572. The law cast upon appellee the burden of explaining the presence of Satterwhite behind the counter, and his handling the goods sold. Failing to offer any evidence, it must be presumed that the interest of the vendor in the goods sold, indicated by his action, continued to exist, notwithstanding the assumed sale. See, also, Bank v. Borland, 5 Ala. 531; Mayer v. Clark, 40 Ala. 259. So far as is disclosed by the record, there was nothing that tended to weaken the sheriff's testimony, or that would justify a jury in ignoring it. Wilk v. Key, 117 Ala. 289, 23 South. 6. We repeat that we are clearly of the opinion that the great preponderance of the evidence was against the finding of the jury, and that the verdict was contrary to the evidence, and our conclusion is that the court erred in refusing to grant the motion for a new trial. The judgment will be reversed, and the cause remanded. STATE, to Use of BRANCH AGRICULTUR- A bill was filed in behalf of a school, for the purpose of rescinding a contract of sale and purchase of musical instruments, upon the ground that the price paid by the board of control of said school for such instruments was grossly in excess of their real value, and that the person selling said instruments was at the time a member of the board of control, acting in a fiduciary relation, and was guilty of a breach of trust. The material averments of the bill were denied in the answer. The evidence wholly failed to show any fraud, concealment, or misrepresentations made by the seller of the instruments, but, on the contrary, showed the utmost good faith and fair dealing. There was conflict in the evidence as to whether the price paid by the board for the instruments was in excess of their real value. The evidence showed that if there was an offer to rescind it was after the continued use of the instruments, which had been greatly abused and deteriorated in value, making it impossible to put the parties in statu quo. Held, that the fact that the seller of the instruments was a member of the board of control did not prohibit him from making the sale or the board purchasing such instruments from him, and that, under the facts shown by the evidence, the complainant was not entitled to the relief prayed. Appeal from city court of Birmingham; Chas. A. Senn, Judge. Bill by the state of Alabama, for the use of the Branch Agricultural School and Ex |
