Buchanan v. Buchanan

BBIOKELL, O. J.

The cause was heard on the bill and exhibits, and the answer of the defendants. The exhibits, the genuineness and authenticity of which are admitted by the answers, and, being transcripts of judicial proceedings, are certified by the proper officer, and of themselves evidence, show the rendition of a decree, in favor of the complainant, by a court of competent jurisdiction, for the payment of money, prior to the purchase by the defendant in the decree, of the parcel of land sought to be subjected to its payment, and its conveyance to his co-defendant. The burden of proving a valuable consideration for the conveyance, to avoid the subjection of the lands to the satisfaction of the decree, was cast on the party affirming the existence of such consideration. "When the debt or demand of a creditor is prior in date of existence to a conveyance by the debtor, or to a conveyance the consideration of which proceeds from him, the burden of proving a valuable consideration for the conveyance, when the creditor assails its validity, is cast upon the grantee; and if the consideration of the conveyance is averred to be a debt of the grantor, or of the debtor from whom the consideration for the conveyance originally moved, the existence and validity of such debt must be proved. —Hamilton v. Blackwell, 60 Ala. 545 ; Hubbard v. Allen, 59 Ala. 282 .

The answer is not verified, and, under the statute, is not evidence for the defendants. If it were verified, it would for the defendants be evidence only so far as responsive to the bill. Code of 1876, § 8786. The existence of an indebtedness from the judgment debtor to his son, the grantee of the conveyance, averred in the answer as the consideration moving the debtor to take the conveyance in the name of his son, is not responsive to any allegation of the bill. It is a distinct fact, set up in avoidance of the fact admitted in the answer, that the father with his own means had purchased the premises. It is an undoubted rule of evidence in equity, that an answer insisting upon a distinct, independent fact, in avoidance of a fact admitted in it, must be proved. The fact admitted is established, but the fact insisted on in avoidance must be proved by the re. *58 spondent. —Clements v. Moore, 6 Wall. 299 ; Hart v. Ten Eyck, 2 Johns. 62 ; 1 Brick. Dig. 738, § 1467. Of the fact that the father was indebted to the son, and that the conveyance of the-premises was taken to the son as a mode of paying the debt, there is no evidence; and the absence of such evidence entitled the complainant to a decree subjecting the premises to her demand.

Affirmed.