GODWIN et al. vs. YONGE, 22 Ala. 553

PHELAN, J. 1. The proof going to establish the mistake in drawing the deed in trust from Yonge to Wells Godwin, for the benefit of Mrs. Yonge, is altogether sufficient to call for a decree reforming the deed, so as to make it correspond with the intention of the maker at the time it was executed. Godwin answers, that he does not know anything about it, and the other defendants make no answer; and in such a case, the clear and direct testimony of one witness would suffice.

But in addition to the testimony of Harris, who drew the deed, we have to this point the declarations of Yonge himself, elicited from John Godwin on cross-examination. 2. Wells Grodwin admits his resignation of the trust. To reform the deed, then, and appoint another trustee, was manifestly the duty of the Chancellor. 3.

But it is argued, that there is testimony going to show that Yonge was indebted at the time he made this deed; and furthermore, that there is proof tending to show that the deed was made with intent to “ hinder, delay and defraud” creditors ; and that it was the duty of the Chancellor, in view of this proof, to have refused the relief sought, and dismissed the bill, on the ground that the deed, whether it bore one shape or the other, was fraudulent and void as to creditors. The decree must be based on the allegations of the bill. Gresley’s Eq. Ev. 158, 161.

The Iona fides of the deed is not put in issue by the bill; and if fraud in the making of it was any defence against the relief sought, it would only be so as to the judgment creditors, and they have not answered or set up such a defence in any way. It did not lay in the mouth of Grodwin, who was a trustee, and had taken upon himself the trust, to allege fraud in the making of the deed, as a defence to the relief sought as to him, which was only the reformation of the deed, and the appointment of another trustee.

The proof, then, going to show that the deed was made in order to avoid the payment of a judgment, which might be recovered in a suit for assault and battery by some one against Yonge, and of which he stood in fear at the time he made the deed, is not in jjursuance of any allegation, and goes for nothing. Such a motive would vitiate a deed, undoubtedly; but it must be upon formal complaint, by some one who is entitled to take advantage of the defect. The same remarks are applicable to the proof that Yonge was indebted at the time he made the deed.

There is not any proof that the debts upon which ihe judgments brought to notice in this case are founded, were then owing by Yonge; and although this, if true, would make the deed fraudulent as to such creditors, yet, proof, without allegations from some authorized source, goes for nothing. The judgment creditors did not answer the bill, and, so far as Grodwin was concerned, it was no defence to the relief sought against him. 4.

The allegations of the bill, that the judgments under which the executions issued had been wholly, or for the most part, paid, are not answered by the other defendants, whom they chiefly concern, and as to them, therefore, must be taken to be true. And the answer of Godwin to this point does show, that much the larger part of the judgments has been in fact paid. In view of all this, we think the Chancellor very properly decided to make perpetual the injunction against the proceedings at law to subject the property. There is no error in the record, and the decree below is affirmed.