O'Neil v. Birmingham Brewing Co.

101 Ala. 383 | Ala. | 1893

McCLELLAN, J.

“All deeds of gift, all conveyances, transfers and assignments, verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, are void against creditors, existing or subsequent, of such person.” — Code, § 1730.

A mortgage of merchandise and the like by a debtor to his creditor to secure the indebtedness, or a formal sale intended to operate only as a security for the indebtedness, is a transfer for the use of the person executing the mortgage or bill of sale within the section quoted, and void as against both existing and subsequent creditors where the mortgagor or seller is, by the terms of the writing or extraneous understanding of the parties, expressed or implied, permitted to remain in possession of the property and sell the same in the regular course of trade for his own benefit. — Benedict v. Renfro, 75 Ala. 121; Murray v. McNealy, 86 Ala. 234, 5 So. Rep. 565; McDermott v. Eborn, 90 Ala. 258, 7 So. Rep. 751.

The present bill makes a case within this statute as construed in the cases cited. The transfer of the property being void alike as against antecedent and subsequent creditors, all simple contract creditors, whether prior or subsequent, have equal rights and. the same remedies in respect of subjecting it to the satisfaction of their demands ; and upon the same principle that prior creditors may unite in a bill attacking a sale by the debtor, which is fraudulent and void only as against debts existing at the time of the transaction, both classes of creditors may join in an assault upon a transaction of this sort, which is void as against the claims of each.

The bill as amended does not seek relief against Bridget O’Neil individually. Its sole purpose so far as she is concerned is to subject to the satisfaction of complainants’ demands the assets of the partnership, doing business under the name of Patrick A’Hern, and composed, as is alleged, of said A’Hern and Mrs. O’Neil. It is no objection to such a bill that one of the partners is a married woman, nor does that fact constitute an infirmity in the binding obligation of the contracts by which the firm became indebted to the complainants.— LeGrand v. National Bank, 81 Ala. 123, 1 So. Rep. 460; Reed Lumber Co. v. Lewis, 94 Ala. 626, 10 So. Rep. 333.

If the claims of complainants, or any of them, or any part of either of said claims, were without consideration, or based on an illegal consideration, this was matter of defense to be laid before the court by answer. The bill was not bad for that it averred the consideration in part of the debts sought to be enforced was vinous, spiritous or malt liquors, sold by complainants to the partnership, and failed to aver that the sellers were licensed to make such sales. The prima facie presumption of law is that they had complied with the revenue statutes, and taken out the prescribed license.

As the bill avers that the partnership business was carried on in the name of Patrick A’Hern, it is fair to assume that the license, under which the partnership sold liquors, was made out in his name alone. We conceive of no reason for holding, even conceding that a liquor license can not be granted to a woman,' that a silent partner in the business and assets of the concern, whether man or woman, could in such case claim immunity for his or her interest, on the ground that he or she was without a license or incapacitated to obtain a license in his or her own name. Moreover, we find no warrant in our statutes for the position taken by counsel, that a liquor license can not be issued to a woman, married or single ; and certainty no ground can exist for relieving a partnership, one member of which is a mar-' ried woman, from liability for liquors purchased by the firm, that would not equally apply to all other liabilities, or for exempting such firm from the doctrine established by the cases cited above, which, so far as the partnership assets are concerned, places accountability to creditors on the same footing as that of partnerships composed entirety of persons in all respects sui juris.

The operation of the statute quoted at the outset of this opinion — Code, § 1730 — does not depend upon the insolvency of the grantor in trust. Its letter and spirit unite to the negation of such a construction. And it is, therefore, not necessary, to present a case for relief under it, for the bill to aver insolvency : the creditor has a right to pursue and subject property conveyed by his debtor, to the latter’s own use and benefit, notwithstanding the' debtor may have property which might be subjected to the debt. — Dickson v. McLarney, 97 Ala. 383; 12 So. Rep. 398.

The foregoing observations dispose of all the demurrers interposed to the bill adversely to the appellant, and the decree overruling them must-, therefore, be affirmed.