The Birmingham age-herald., 1903-02-28
OPINIONS OF THE
 SUPREME COURT

Bradshaw vs. Gunter, executor. Bill in
 equity to cancel cloud on title. Appeal
 from the Chancery court or Montgom-
 cry.
 1. Contracts. Construction of.-In an ac- tlon of ejectment the plaintiff, G.. recov- cred a judgment against A, defendant, for the lands sued for. From this judg- ment A appealed to the Supreme court. Pending the appeal, B., A. S attorney, ad- vanced to E. r. G., for whom G. was trustee under a deed of trust certain money, and by the terms of the written contract evidencing this advance, the sum so paid was "to stand and operate and be the full consideration to be paid said E. F. G. and others and their grantees for their interest and claim on the lands in the ejectment suit (which they were to quit-claim and convey to A.), and upon the contingency and in the event that their recovery of said lands be upheld on appeal and the judgment in said eject ment suit be sustained" The agreement also provided that If said judgment be reversed, the said A, by legal or equit- able proceedings establishes it's title against that here contracted to be sold, then and in that event the said note and
 
 the money so furnished by B.) shall be- come due and payable and be of full force and virtue" etc. Held: That, under the agreement, if the case were affirmed on the appeal and the title adjudicated 10 belong to G., the money was not to be repaid that if the judgment were re- versed in such way to settle the title against G. the note and mortgage were to stand and become due; that, If reversed n ba adjudicated 1t was not contemplated by such agreement that such reversal would settle the title.
 2. Same; Prevention of Performance of Contract Effect of; Estoppel-B. attorney for A., defendant in an ejectment suit which was pending in the Supreme court 1 on appeal agreed with the plaintiff there- l in, G., Cor persons representing the | plaintiff), to furnish them certain money. which was secured by note and mortgage 1 upon other land. said money not to be re- | paid if the title to the land in suit was | adjudicated to G. by an affirmance of the l judgment, but the same to be a loan | and the mortgage to stand as security | therefor, If the case were reversed and | the title settled in A favor. In consd- l eration of said sum so advanced G. was to | convey and did convey to A. her right | and interest in the land in suit. After | the reversal of the ejectment suit, but | not upon its merits B., as attorney for | A, interposed therein a plea since the l last continuance, setting up as a bar to 1 the further maintenance of the suit the conveyance to A. by plaintiff. This plea | was proven and judgment rendered there | on in favor of A. Held, that by so do- | ing B. elected to claim c, s title for A. 1 as on purchase, and thereby waived and l estopped himself to claim any condition upon which he had the right to reject the 1 conveyance by G. and reclaim the pur- chase money as a loan. and that the mort gage would be cancelled as a cloud on G. s title to the land included therein. 3. Contract Preventing Performance of; liability-One who prevents performance or happening of a condition precedent, upon which his liability. by the terms of a contract, Is made to depend, cannot avail himself of it's on-performance. Af- hrmed Opinion by Haralson, J.
 Penney vs. McCulloch, ct all McCulloch, ct al, vs Penney, cross appeal. Bill in
 equity to set aside fraudulent convey
 ance. Appeal from the Chancery court
 of Morgan.
 l. Fraudulent Conveyance; Suniciency of Answer to Bill; Burden of Proof Where a bill is filed by existing creditors of an alleged insolvent partnership against the partners ana their grantee, seeking to set aside a mortgage of sub stantially all the partnership property as constructively fraudulent as against com plainants' rights an answer filed by such grantee, containing only a mere general denial of the allegations of fact charged in the bill, is insufficient to relieve re- spondent of the prima facie case made against him, the burden resting upon him of overcoming the presumption of unfalr- ness and mala fides both by a clear and distinct response to each averment of the bill and by clear proof.
 2 Same; Burden of Proof as to ConsTd- eration of Alleged Fraudulent Convey ance.-Where a bill is filed by existing creditors of an insolvent partnership against the partners and their mortgagee, seeking to set aside the mortgage as in fraud of complainants rights, proof hN cAnanl q In nts of tl,s.