The majority opinion holds that the conveyance of a contingent remainder, even if made for the purpose of hindering, delaying or defrauding a creditor, cannot be set aside by a creditor, since contingent remainders are not subject to levy and sale under execution. By requiring that the interest *117which a debtor holds be a vested interest,1 subject to levy and sale and subject to a judgment lien, the majority has unduly limited the provisions of Title 20, § 7, Code of Alabama 1940, Recomp., 1958, which provides :
“All conveyances, or assignments in writing, or otherwise, of any estate or interest in real or personal property, and every charge upon the same, made with intent to hinder, delay, or defraud creditors, purchasers, or other persons of their lawful suits, damages, forfeitures, debts, or demands; and every bond, or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, against the persons who are or may be so hindered, delayed, or defrauded, their heirs, personal representatives and assigns, are void.” (Emphasis supplied.)
This Court has said that transactions to defeat creditors are viewed with disfavor and that this statute, which provides that conveyances in writing of any estate or interest in real property which are made with intent to hinder, delay or defraud creditors of their lawful debts are void, should be liberally construed. Taylor v. Peoples Fertilizer Co., 270 Ala. 243, 117 So.2d 180 (1959).
In Galloway v. Shaddix, 197 Ala. 273, 72 So. 617 (1916), the late Justice Mayfield commented on the right of a creditor under our statute. He wrote:
“The right, however, to set aside a conveyance as fraudulent, does not at all depend upon the amount of complainant’s claim or demand against the debtor, or the wrongdoer in tort actions. The abstract right is the same whether the demand be one cent, one dollar, a hundred or a thousand dollars. Neither does the right at all depend upon the value of the property conveyed. No disproportion between the value of the claim or demand, and the value of the property conveyed, affects the absolute right to maintain a bill to set aside the conveyance. This question might go to the propriety, but not to the right, of maintaining such a bill.”
• The majority holds that since the creditor could not levy upon the contingent remainder interest at the time it was conveyed by the debtor, that the creditor is not prejudiced. I must strongly disagree. But for the conveyance by the debtor of his contingent remainder, he could have-become possessed of the entire property upon the death of his wife, an event which is. certain to occur, and which could occur during the time when the creditor’s judgment is still viable and unsatisfied.
■ .The debtor may die first, and the creditor would therefore realize nothing from having' the conveyance of the contingent remainder set aside, but the death of the debtor would be the event which removed the contingent remainder interest out of the creditor’s reach, not the fraud of the debtor.
The debtor’s contingent remainder interest must have had some value or the debtor would not have tried to get it out of his *118hands. If his contingent remainder interest did not have value, why does he object to having his conveyance of it set aside? The answer is obvious. As the matter now stands, no matter when his wife dies, he will never get the entire property. That was, no doubt, very important to him, because the trial court found that the conveyance- of his interest was made with the intent to hinder, delay or defraud his creditor. I regret this Court gives legal approval to his scheme.
The majority opinion, in effect, holds that a fraudulent conveyance cannot be made of property which is not, subject to execution. This reasoning is not sound, in my judgment. For instance, “things in action” are expressly excepted from “personal property of the defendant” on which executions may be levied under Title 7, § 519, but a fraudulent transfer of a “chose in action” may be set aside. Hall & Farley v. Ala. Term & Imp. Co., 143 Ala. 464, 39 So. 285 (1904).
Admittedly, a contingent remainder is not subject to levy and sale. Shrout v. Seale, 287 Ala. 215, 250 So.2d 592 (1971). In Shrout, however, there was no proceeding to have the conveyance from the debt- or to his wife set aside. I would leave Shrout where it is, standing for the proposition that-an execution cannot be levied upon a contingent remainder. To tie our fraudulent conveyance statute together with our execution and judgment lien statutes is improper.
Unfortunately, there is a scarcity of authority from other jurisdictions on the question of the right of a creditor to set aside a fraudulent conveyance of a contingent remainder. Most of the authority which does exist appears to support the interpretation which I would give to our fraudulent conveyance statute.
In 37 C.J.S. Fraudulent Conveyances § 11, p. 858, it is said:
“Interests and estates which have been held within statutes against fraudulent conveyances include a contingent remainder, a leasehold, an estate in expectancy, although there is authority, to the contrary on this point, a husband’s equity in a joint tenancy, and a husband’s portion of an estate by the entirety, to the extent of the purchase price paid by him where such estate was created in fraud of creditors.”
See also, Read v. Mosby, 87 Tenn. 759, 11 S.W. 940 (1889), where it was held that a conveyance by an insolvent debtor, for a consideration of love and affection, of his expectancy in his living father’s estate, would not be upheld in equity against creditors who were such either at the date of the conveyance or at the date of the father’s death.
For the foregoing reasons, I respectfully dissent.
HEFLIN, C. J., concurs.. It is interesting that in Title 7, § 585, it is provided that a lien is fastened “on all property of the defendant, which is subject to levy and sale under execution” . and that Title 7, § 519 provides, in part;
“Executions may he levied:
On real property to which the defendant has a legal title, or a perfect equity, having paid the purchase money, or-in which he has a vested legal interest; in possession, reversion, or remainder, whether he has the entire estáte, or is entitled to it in common with others.” (Emphasis supplied.)
That the Legislature distinguishes between a vested and a contingent interest is shown by the provision of Title 47, § 140:
“Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person, or upon an event which may or may not happen.”