127 Ala. 376 | Ala. | 1899
On January 8th, 1894, the 1-1. B. Claflin Co., Josiah Monts & Co., and Cane, McCaffrey & Co., creditors of the Poliak Co., a mercantile corporation, sued out an attachment against said Poliak Co., and the writs were severally levied on the stock in trade of said company. Immediately after these writs were levied, a resolution was adopted by the 'directors of the Poliak Co. directing Ignatius Poliak, its president, to execute a general assignment of all its property and assets to Pelzer and Roman for the benefit of its
Upon the, foregoing statement of the case as presented by the bill and answers, it is obvious that the main issue in the cause is collusion vel non between said creditors and the Poliak Co. in the suing out of said attachments. The chancellor found that issue in favor of the complainant as to Josiah Morris & Co. and the H. B. Claflin Co. and against the complainant as to Cane, McCaffrey & Co., and decreed relief accordingly.
In reviewing this finding no presumption in favor of its correctness can be indulged, the statute providing that “in deciding appeals -from the chancery court no weight shall he given to the decision of the chancellor upon the facts, but the Supreme Court shall weigh the evidence and give judgment as they may deem best,” (Code, $ 3826) ; and-as the evidence before the chancellor was the same and in the same form — depositions
On the issue thus made and thus determined by the chancellor and now presented for our determination anew,' the burden of proof throughout was upon the complainant. The rule that on a bill filed to set aside a conveyance of property made by an insolvent and failing debtor in payment of an alleged antecedent debt the onus is on the respondent grantee to specifically allege and satisfactorily prove an adequate, bona, fide consideration, and how, when and in what it was paid, etc., etc., has no application here. In the case stated the burden of alleging- and proving the conveyance by such a debtor is always upon the complainant, and it is only when 'the fact of conveyance has been proved or admitted that the onus shifts to respondent to show the consideration, its payment, etc. 'If property of an insolvent debtor could he efficaciously transferred by him to a creditor in payment of an antecedent debt by means of a collusive attachment, and the fact of collusion in the issuance of such attachment were admitted in a given case, then and thereupon it would be for the attaching creditor to prove the bona fides -and adequacy of his debt and its satisfaction through the attachment; but until the collusive and covinous character of the attachment should be proved or admitted ■the respondent would rest under no burden whatever. And if in such case it were admitted, as it is here, that the asserted debt was jiist and adequate, and that there were grounds for the issuance of the attachments, there would he no occasion, in any aspect possible of assumption by the ease, for the creditor to offer any evidence: the whole case for the complainant would fall of its own weight to the ground. In the, case supposed the collusiveness of the attachment, would have to he proved before the respondent would ho put to any showing whatever; as in the (-ase of an alleged fraudulent conveyance, the fact of the conveyance by an insolvent debtor must he proved before the respondent is called upon to prove anything, before any burden is cast upon him.
A careful examination and consideration of the evidence in this ease fails to reasonably satisfy us that the attachments were sued out and levied under any agre, .nent,' understanding or arrangement between the attaching creditors and the Poliak Co., or that there was collusion in any form between them, or even that the Poliak Co. knew said creditors were about to sue out the attachments and delayed the execution of the assignment in order that they might secure a preference by the levy of the attachments, or that said credi tors knew that the Poliak Co. was contemplating making an assignment. Upon the direct inquiry of collusion •r,el non the complainant itself examined Billing of the firm and the manager of the business of Josiah Morris & Oo., and the sole representative of that firm having any connection with this transaction, and Knowles, the secretary and treasurer of the Poliak Co. These witnesses testified roundly and particularly and circumstantially, so to speak, to the effect that there was no agreement, no understanding, no arrangement, no collusion between the attaching creditors and the Poliak Co. in respect to the attachments, that the creditors never communicated their purpose to attach to said company, that it knew of no such purpose, and that the creditors knew nothing of the contemplation of the company to make a general assignment in the event attachment should be levied. There is no suggestion nor room for suggestion in the case that the witnesses Billing and Knowles thus introduced and examined by the complainant testified otherwise than complainant expected they would. Complainant was of' course at liberty to show that the facts werq other tiran as de
But even if the Poliak Co. had reason to believe that these creditors were going to attach, or even knew it, and delayed the execution of the deed until they had attached, and thereby acquired a priority, the rights
The fact that respondents failed to examine Poliak, the president of the company defendant in attachment, and White, its attorney, is not proper matter for consideration against them. To make it pertinent the theory would be, of course, that Poliak and White knew the facts as to collusion vel non, and that they must have known there was collusion, else respondents would have examined them. These witnesses were equally accessible to the complainant, and it would seem more pertinent to say, since the burden to prove collusion was on the complainant, that the latter knew they would testify there was no collusion else it would have examined them. But no legitimate deduction can .be drawn from such failure to examiné witnesses accessi ble to both sides, as has been expressly decided by this court in Brock v. State, 123 Ala. 24, and in Coppin v. State, 123 Ala. 58.
Numerous and various other circumstances are supposed by counsel for appellee to have a tendency to prove the averments of the bill as to collusion, etc. between the attaching creditors and the Poliak Co., and whatever weight these are set forth as having inherently is supposed to be greatly augmented by the alleged failure of the creditors to explain them. We shall not enter upon a discussion of these supposed circumstances. They have each been considered by the court, or, to speak more accurately, the court has considered the argument of counsel as to each of them in connection with the evidence; and we find that conceding that each of them has some support in the evidence and allowing for every legitimate inference in support of the bill which may be drawn from' them they do not prove the collusion alleged in the bill, and very clearly they utterly fail in that behalf when considered in connection with the positive testimony of witnesses to which we have adverted going directly to show that the respondent creditors acted well within their absolute rights, in good faith and without collusion with the Poliak Oo. in suing out their attachments. So far as the argument of counsel proceeds on the theory that these respondents were under the burden of explaining anything that occurred — and_ it does proceed on that theory to a great-extent — it is untenable. There was no such burden on them, but they had a right to sit still and say nothing until the complainant proved its bill.
The foregoing discussion will serve to indicate the considerations upon which we reach the conclusion that the complainant has not proved the case made by its ■bill. The decree entered below must, therefore, be reversed, and a decree will be here entered, denying relief and dismissing the bill.
Reversed and rendered.