122 Ala. 461 | Ala. | 1898
— 1. One of the questions in the case was, whether or not an alleged levy by the sheriff on the goods in question, under a writ of attachment sued out by appellants against the defendant in attachment, one J. Oppenheimer, was prior and superior to a deed of assignment executed by the defendant at or about the same time of the alleged levy, conveying to the claimant, II. Scliloss, as trustee, the same goods for the benefit of specified creditors of said defendant. It is a question of competition for superiority betAveen the attaching creditors, and the assignee in trust of said goods. The plaintiffs in attachment sought to show, from what occurred at the time, that the levy was complete, and that the goods Avere in the possession of the sheriff, before the said deed of assignment was executed; and the claimant, that said deed of assignment Avas executed and delivered by the defendant to said trustee, before the alleged levy
2. In the absence of statutory restrictions, the right of a debtor to execute a conveyance or assignment for the benefit of creditors, giving preference to one or more of his creditors over others, and which amounts to an absolute exclusion, even of the non-preferred creditors, is universally recognized. This power, says Mr. Burrell, has always been recognized and approved in the fullest manner, both by the State and Federal courts, as well as by most American jurists. And the right extended to general as well as to partial assignments to a trustee for the benefit of the debtor’s creditors with preferences, and by insolvents as well as by those.who were solvent. Burrell on Assignments, § § 13,128. It was said by this court in Perry Ins. & T. Co. v. Foster, 58 Ala. 502, 513 : “It is conclusively settled, that a debtor in failing circumstances, or actually insolvent, has the right of pref
As we have, seen, this privilege is not taken from an insolvent, and the mere fact of insolvency of the assignor, and that his failing condition was known to the assignee and beneficiaries under the deed, does not, of itself, make the deed fraudulent under another statute, declaring all conveyances or assignments in writing or otherwise of any estate or interest in real or personal property, made, with the intent to hinder, delay or defraud creditors, to be void. — Code, § 2156 (1735). But assignments, whether general or partial, are void when
In the case in hand, the assignor in the deed of partial assignment, parted absolutely with the property assigned, reserved no possible benefit to himself, imposed no burdens on the creditors, and required the assignor to sell or dispose of the property conveyed with all convenient and reasonable diligence, either at public or private sale at the best obtainable prices, and apply the proceeds to the debts of the creditors mentioned, if sufficient therefor, and ratably, if not, and if more than sufficient to pay them, then to pay the balance to all. other creditors of the assignor in proportion to the amount of their respective claims. It was also shown, that the debts mentioned in the deed as owing by the assignor were valid and bona fide, arid were in amount larger than the value of the goods assigned.
It is settled in this State, that the assent of creditors will be presumed to a deed of assignment, which appropriates the property conveyed by it, absolutely and unconditionally to the payment of their debts, — the instrument being free from fraud or illegality, and containing nothing which can be construed as prejudicial to their rights.- — Truss v. Davidson, 90 Ala. 359; 1 Brick. Dig., 129, § § 87, 89; Halsey v. Connell, 111 Ala. 221.
3. To constitute the levy of an attachment on personal property, as we have repeatedly held, the officer must assume dominion over it. He must not only have a view of the property, but he must assert his title to it by such acts as would render him chargeable as a trespasser, but for the protection of the process. — Abrams v. Johnson, 65 Ala. 465; Kennedy v. Mary L. C. & R. Co., 93 Ala. 495. An inventory of the property seized, for
At first Anew our impression Avas that an inference might be draAvn from the evidence, and that it was, therefore, a question for the jury, that the deed of assignment ivas delivered to the assignee, Schloss, prior in point of time to the levy on the goods by the sheriff, and that-, if the levy had first been made, that the officer, thereafter, abandoned the levy. But, upon a more careful examination Ave are driven to the conclusion, that that impression, as to both these propositions, Avas erroneous. The plaintiff’s evidence is direct and positive as to these issues, and leaves no doubt as to-the priority of the levy, and that there Avas no abandonment of it The evidence of claimant’s witnesses, when closely scrutinized, though not so positive, does not conflict Avith the testimony of the plaintiff’s witnesses. We do not deem it necessary to go to the length and trouble of an extended discussion of the evidence, but are content with the announcement of our conclusions. It follows, the
Reversed and remanded.