118 Ala. 330 | Ala. | 1897
This was an action in which the appellant was plaintiff, and the appellee, Campbell and the sureties on his official bond, as sheriff of Marshall county, were defendants. The breach of the official bond alleged in the complaint, is the seizure and taking away from tbe possession of the plaintiff a stock of liquors, the property of plaintiff, under certain writs of attachment issuing against his son, W. H. Morrow. The plaintiff claimed to have purchased the liquors from his son in payment of an antecedent indebtedness, prior to the levy - of the attachments, and the validity of the sale was the real issue to be determined. The son was engaged in the liquor business during the year 1894, and also conducted a general mercantile business in the
Tt is settled law in this State that a debtor, although insolvent or in failing circumstances, may sell a part or the whole of his property to one of his creditors in payment of an antecedent debt, and such sale will be upheld, on an attack by other creditors, if the debt wasbona fide, in amount not materially less than the fair and reasonable value of the property so sold, and no use or benefit, other than the liquidation of the debt, was reserved to the debtor. When such sale is attacked the only material inquiries are, the bona fides of the debt, the sufficiency of the consideration, to be measured by the value of the property, and the reservation of a benefit to the debtor. If the first of these inquiries be found affirmatively, and the last negatively, the title thus-acquired by the purchaser is valid, unimpeachable by the creditors of the vendor. The fraudulent intent of one or both the parties to the transaction will not vitiate it, and the inquiry into their intent and motives-is, therefore, immaterial. — Hodges v. Coleman, 76 Ala. 119; Meyer & Co. v. Sulzbacher, Ib. 120; Knowles v. Street, 87 Ala. 357; Pollock v. Meyer, 96 Ala. 172. Such has been the uniform ruling of this court since the case-of Hodges v. Coleman, supra. Nor is such a transaction annulled and rendered fraudulent by the act of 1S92-93, p. 1046, amendatory of section 1737 of the Code-of 1886, (Code of 1896, §2158), providing that every conveyance by a debtor of substantially all his property in payment of a prior debt, by which a preference or-priority of payment is given to one or more creditors,.
It results, from the application of these rules, that when such sale is attacked, evidence, the only tendency of which is to show a fraudulent motive or intent on the part of the vendor or vendee, or both, is not pertinent to the issue involved. Such was the testimony, admitted against appellant’s objection, tending to show that a few days before appellant’s purchase, W. H. Morrow sold to 'his brother the stock of goods in his other store, and that the latter sale was fraudulent; and also the testimony to the effect that a year previously appellant, for the purpose of defrauding his creditors, had executed to W. H. Morrow a mortgage covering all his property to secure a simulated indebtedness. The court below erred in overruling the several objections to the questions eliciting this testimony and in refusing to exclude it. It was error also to admit the testimony of the witness, Simpson, that on the morning of the day appellant purchased the goods witness called on W. H. Morrow and requested payment of a debt, and that the latter told him he had no money, and refused to give him a note, although said Morrow had previously testified that on that day he had $1,000 in money. If offered to contradict and impeach W. H. Morrow, it was inadmissible, since it was entirely immaterial whether he had any money or not, and only such statements of a witness as are material can be made the basis for proof of contradictory statements.
In an action attacking a sale made by an insolvent debtor in payment of an indebtedness, the purchaser having offered evidence tending to show a bona fide indebtedness, not materially less than the reasonable value of the property, the burden is then shifted to the
Reversed and remanded.