Moore, Marsh & Co. v. Penn & Co., 95 Ala. 200

Moore, Marsh & Co. v. Penn & Co.

95 Ala. 200 | Ala. | 1891

CLOPTON, J.

Under an order for a certiorari, the clerk of the Circuit Court returned a transcript of the bill of exceptions as signed by the presiding judge, from which it appears that blank spaces were left, in which some papers used in evidence were to be copied by the clerk. Appellees *202thereupon moved to strike from the bill of exceptions • returned in the original transcript two notes and a’ deed of assignment copied in two of the blank spaces, on the ground that they were not incorporated when the bill of exceptions was signed by the judge, and are not so identified as to authorize their insertion by the clerk in making up the record. The rule is well settled, that the incorporation of any paper read or offered to be read in evidence in the bill of exceptions before it is signed, or such description by identifying features as to leave no room for mistake by the transcribing officer, is indispensable. — Pearce v. Clements, 73 Ala. 256. It being conceded that there is not éven a pretended description of the notes, and that the description of the deed of assignment is general and .indefinite, the motion to strike them from the bill of exceptions is granted.

The present proceeding is a statutory trial of the right 'of property to a stock of goods, levied on by attachment sued out by the appellees against the estate of Spinks Bros., to which appellants interposed a claim. On the evidence, the court gave the affirmative charge in favor of plaintiffs. The first objection urged to the charge is, that the bill of exceptions, which purports to set out “substantially all the evidence,” does not show any proof that the plaintiffs were creditors of Spinks Bros, at the time of the sale of the goods to claimants, or at any other time. The objection is based on the fact that a blank space was left in the bill of exceptions signed by the judge, which is filled in the first transcript by the insertion of copies of an affidavit and attachment. On the settled rule, that the corrected transcript returned in obedience to an order for certiorari must be regarded as the true and correct record, so far as there is any repugnance between the contents of the first and second records, it is insisted that the principle on which the notes and deed of assignment were stricken out should be extended, so as to prevent the attachment from being considered, on this appeal, as a part of the evidence set out in the bill of exceptions; and that if the attachment be excluded, there is no evidence that Spinks Bros, were indebted to plaintiffs. "Whether there is any repugnancy between the contents of the two bills of exceptions, depends on the question, whether the description in the bill signed by the judge sufficiently identifies the affidavit and attachment to justify their insertion in the blank space. The proper issue, on the trial of the right of property, is an affirmation on the part of plaintiffs that the goods levied on are subject to the attachment, and a denial by the claimants. There was but one *203attachment issued and levied on tbe goods; the same attachment mentioned in the affidavit and claim bond made by the claimants, which is the foundation of the trial of the right of property and of. the issue joined-^-a part of the record. W e are unable to see how any mistake could have been made by the transcribing officer. This is the certainty of identification 3 equired by the rule. If the attachment be regarded as part of the bill of exceptions, it is sufficient evidence, on the trial of the right of property, and for the purposes of such trial, of the indebtedness of the defendants in the attachment to plaintiffs, which can not be questioned by the claimants. — Pulliam v. Newberry, 41 Ala. 168.

While the bill of exceptions states, “the foregoing is substantially all the evidence in the case,” it also states the attachment as a part of the foregoing evidence. If, then, the contention of appellants be conceded, and the attachment be regarded as stricken out, we have a bill of exceptions showing that the attachment was in evidence, and not furnishing the document itself, or a statement of its contents. In this state of the record, we are bound to presume, not being informed to the contrary, in favor of the ruling of the Circuit Court, that the attachment evidenced a debt due from the defendants therein to the plaintiffs.— Glass v. Pinckard, 56 Ala. 592; Hosea v. Talbert, 65 Ala. 175.

The consideration paid for the goods by the claimants was the payment of two notes which they alleged had been made by Spinks Bros. A transaction by which an embarrassed or insolvent debtor sells his property to a creditor, the payment of an antecedent debt being the sole consideration, is without the scope of the usual inquiries, in cases of fraudulent conveyances on a present consideration in whole or in part, as to the existence of badges of fraud, or the intent of the debtor to hinder, delay or defraud his other creditors, and participation therein or knowledge thereof on the part of the purchasing creditor. As we have repeatedly said, the material inquiries, when such transactions are assailed as fraudulent, are directed to the existence and validity of the debt, the sufficiency of the consideration, and the reservation of a benefit to the debtor. — Hodges v. Coleman, 76 Ala. 103; Knowles v. Street, 87 Ala. 357; Harmon v. McRea, 91 Ala. 401. This limitation upon the general rule is rested on the principle, that a debtor, devoting his property to the payment of an honest debt, performs a lawful act, which can cause no legal injury to another creditor. In order, however, that the creditor may bring himself within the protection thus afforded to a preferred creditor, he must *204satisfactorily prove tbe existence, amount and bona fldes of tbe debt, and tbe adequacy of tbe consideration; and also sbow that no benefit was reserved to tlie debtor. If be fails to establish either tbe existence and validity of bis debt, or that its amount is not materially less than tbe fair and reasonable value of the property, the law stamps tbe transaction as fraudulent as against other creditors.

This repetition of principles, so repeatedly and uniformly declared, is made because of their applicability to tbe evidence shown by tbe bill of exceptions, as constituting a basis of tbe affirmative charge. Tbe evidence shows that tbe goods purchased were worth, as testified by two witnesses, sixty cents, and by another, eighty cents on the dollar, of the invoice price, which was about $4,300.00. Taking the lowest estimate as most favorable to- claimants, the value of the goods was about'$2,580.00. Perryman, a member of the firm of Moore, Marsh & Co., testified, without objection, that Spinks Bros, were indebted to claimants “in the sum of $2,938.40, as shown by two promissory notes made by them;” and that the consideration of the note calling for $1,369.25 was money loaned by the claimants to Spinks Bros. The bill of exceptions recites that 'the notes were read in evidence against the objection of plaintiffs; but, as the notes appearing in the original transcript are stricken outj neither the notes nor statement of their contents are given, otherwise than the amount of one is incidentally mentioned as above stated. It further appears that the note last mentioned, and all the witness said as to its consideration, were subsequently excluded. As this ruling constitutes an assignment of error, we may remark, that there was no error in excluding the evidence, the witness having testified, on cross-examination, that he knew nothing about the loan of the money except as informed by his partners. It was not permissible for the witness to testify to the amount and consideration of the indebtedness from what his partners told him; they should have been examined. The exclusion of the note and the testimony as to its consideration leaves no evidence of the consideration and bona fides of any part of the indebtedness.

But, if the existence and validity of the balance of the indebtedness testified to by Perryman, after deducting the amount of the excluded note, were conceded, and the inference most favorable to the claimants as to the value of the property allowed, the bill of exceptions presents the case, when a creditor purchases from an insolvent debtor his entire stock of goods, the sole consideration being the extin-*205guisbment of a debt materially less in amount than tbe reasonable value of tbe goods. Tbe claimants baying failed to produce evidence tending to sbow tbe existence and validity of a large part of tbe indebtedness, wbicb it is alleged constituted tbe consideration paid for tbe goods, it must be regarded as in fact simulated, at least to tbe extent of tbe unproved indebtedness. Sucb a sale is fraudulent in fact, as against tbe existing and subsequent creditors of Spinks Bros.— Gordan v. McIlwain, 82 Ala. 247. In tbe state of evidence shown by tbe bill of exceptions, tbe court was justified in giving tbe affirmative charge for plaintiffs.

This dispenses with consideration of the other rulings of tbe court. We are not prepared to say there is error in any of them; but, if erroneous, they worked no injury to appellants.

Affirmed.