112 Ala. 567 | Ala. | 1896
The case was before the court at a former term. — Strickland v. Gay, 104 Ala. 375. Since, the bill has been amended, curing the insufficiencies then pointed out, and by the addition of allegations of facts which impart to it equity, according to the opinion then rendered.
The statute, (Code of 1886, § 1737), as amended by the act approved February 21, 1893, reads: “Every general assignment, or a conveyance by a debtor of substantially all of his property in payment of a prior debt, by which a preference or priority of payment is given to one or more creditors, over the remaining creditors of the grantor, shall be and inure to the benefit of all the creditors of the grantor equally, but this section shall not apply to or embrace mortgages given to secure a debt contracted contemporaneously with the execution of the mortgage, and for the security of which the mortgage was given.” — Pamph. Acts, 1892-93, p. 1046. The original of the statute is found in the Code of 1852, (§ 1556), which read : “Every general assignment, made by a debtor, by which a preference, or priority of payment is given to one or more creditors, over the remaining creditors of the grantor, shall be, and inure, to the benefit of all the creditors equally;” and in this form’ without any change or varying of its words, was carried into the Revised Code of 1867, (R. C., § 1867), and into the Code of 1876, § 2126. This court having decided in Shirley v. Teal, 67 Ala. 449, and in Danner v. Brewer, 69 Ala. 191, that mortgages to secure the payment of debts contemporaneously contracted, were within the influence of the statute, by an act approved February 23, 1883, (Pamph. Acts, 1882-83, p. 189), the statute was amended, excepting such mortgages from its operation; and as amended, the statute was carried into the Code of 1886. — Code of 1886, § 1737.
An absolute sale, unconditional, free from all reservation, in payment or satisfaction of antecedent debts, it was uniformly decided was not within the operation of the statute. — 3 Brick. Dig. 50, § 29 ; Ellison v. Moses, 95 Ala. 221. In Danner v. Brewer, 69 Ala. 200, it is said: “Though sales are often denominated assignments, yet between them and the transactions to which the statute refers there is a broad and manifest distinction. By a sale the vendor strips himself irrevocably and absolutely
The purpose of the amendment of the statute, is to draw, all such sales, all conveyances of substantially all of the property of a debtor, in payment of a pre-existing or prior debt, within its operation. Placing such sales or conveyances upon the same footing with instruments of assignment, or of other form of security for the payment of debts ; engrafting upon each the same trusts— ■ trusts for the equal benefit of all creditors. The sale or conveyance is not annulled; nor is it regarded as fraudulet. It is preserved, as the assignment or other form of security for the payment of debts is preserved. At the election of other creditors, it inures to their benefit— the vendee becomes a trustee, holds the title passing by the sale or conveyance, but holds it for the equal benefit
In the former opinion in this case (Strickland v. Gay, 104 Ala. 378), it was said: “If the bill shall be so amended as to allege that the conveyance to Mrs. Strickland was in payment of prior indebtedness owing by her husband to her, and the averment that there was other property belonging to the grantor, D. D. Strickland, shall be stricken but, the bill will contain equity, and upon the bill as amended being verified, the appointment of a receiver will be proper, unless a countervailing showing against it is made by the respondents. In order to take the property levied on under attachments from the custody of the sheriff, if a receiver shall be hereafter appointed, there should be a prayer in the bill for injunction of the further prosecution of the attachment suits by the plaintiffs therein, and such prosecution'actually enjoined by .the order of the chancellor, and the giving by complainants of the proper bond.’' The bill having been amended in conformity to the opinion, it was doubtless in obedience to it, that the chancellor awarded a temporary injunction, and appointed a receiver to take possession of the goods. It is difficult to understand upon what theory or principle, subsequently, a motion to dismiss the bill for want of equity, and demurrers addressed to its equity, were sustained. The equity of the bill as amended had been adjudged by this court; the adjudication that the grant of an injunction and the appointment of a receiver would be proper, necessarily involved a determination that the bill contained equity, for an injunction or the appointment of a receiver can be obtained only on bills disclosing cases of equitable cognizance.
The argument of counsel in support of the decree is that as the goods in controversy had been levied on by attachments issuing out of a court of law, and the purchaser had given bonds for a trial of the right of property, the goods were in the custody of the court of law, and a court of equity may not disturb that custody ; may not draw them, and the parties asserting claim to them, within its jurisdiction. We have decisions maintaining the doctrine, that when legal process, an attachment or execution, is levied on personal property claimed by a
The principle now more immediately involved is, that the complainants are seeking to enforce trusts, purely and strictly of equitable cognizance ; of which courts of law can not take notice or cognizance, and can not draw* before them all parties who have rights or interests involved; and in all such cases the jurisdiction of a court of equity is exclusive — .1 Pomeroy Eq., § 137 ; 1 Story Eq., §§ 26430. The attaching creditors may be enjoined from prosecuting at law the attachment suits and the trials of the right of property. The injunction operates only on the creditors and the claimant of the property; it does not act upon the court of law itself; nor is it an exercise of supervising power over the court, or of its proceedings. As there are trusts to be enforced,
As amended the bill is properly constituted as to parties. The attaching creditors, the claimant in the trials of the right of property, and the sureties on the claim' bonds, are parties defendant. Having before it all necessary parties, the court will adjust its orders and decrees so as to meet all their real and substantial rights. Without pursuing further the discussion of the case, it is only necessary to say, the decree of the' chancellor must be reversed, a decree entered overruling the motion to dismiss for want of equity and the demurrers, and the cause remanded.
Reversed, rendered and remanded.