On the original hearing we interpreted the testimony of M. F. Webb as showing that he was indebted to various creditors at the time he caused the property in question to be conveyed to his wife, the complainant, as a gift from himself to her; and thereupon we held that she took it in fraud of subsequent creditors as well.
We are now satisfied from a further analysis of his testimony that his admissions did not refer to the period of his said gift, but only to the period of a transaction which occurred many years afterwards, and that his intentions with respect to creditors at the later period can have no effect upon the validity of the original gift, which we think stands unassailed and unimpeached by any testimony or circumstances shown by the record.
The result is that, as to the mortgage referred to, it must be held invalid as being a mere security for the husband's debts, and complainant is entitled to have it canceled as prayed.
There is no merit in appellee's contention that the bill of complaint does not present any issue as to the adequacy of the consideration for the deed of July 27, 1917. The bill shows the relation of the parties, and attacks the deed as procured by the oppressive conduct of the mortgagee. This casts upon the respondent the burden of alleging and proving the fairness of the transaction, including the sufficiency of the consideration, as pointed out in the original opinion.
The rehearing will be granted, the opinion will be modified as above, and full relief granted, as prayed, both as to the mortgage and the deed.
As to the mortgage of June 11, 1915, for $600, complainant is entitled to no relief except redemption, and the cause will be remanded for a reference to ascertain the amount due, and for further orders and decrees as may be appropriate.
It is urged for the appellee that the doctrine of Shaw v. Lacy, 74 So. 933,2 cannot be applicable here, because, if the mortgage for $2,800 was void as a security for the husband's debt, the relation of mortgagor and mortgagee did not in fact exist between Mrs. Webb and the respondent at the time her deed was executed. This contention ignores the fact that there was another mortgage for $600, which we hold was valid and binding on Mrs. Webb, and which fixes the relation between them.
Respondent's application for rehearing is without merit, and will be overruled.
Reversed, rendered, and remanded.
2 199 Ala. 450.