108 Ala. 467 | Ala. | 1895
We think the case made by the original bill is not to be distinguished, in principle, from Rochester v. Armour, 92 Ala. 432. Its averments clearly implicate Poliak & Oo. as aider and abetter in the issuance and levy of-the attachments at a time when that company, having just resolved to immediately execute the general assignment, was proceeding to do so, resulting, in a. few minutes after the attachments were levied, in its actual execution and delivery. The averments connect the two acts, in fact and intent, on the parts of both debtor and attaching creditors, as one transaction, had and completed for the purpose of securing, by a lien, to the attaching creditors, unlawful preferences of security over the general creditors who were to be provided for by the contemplated assignment. In such case, it is i'mmeterial whether grounds of attachment existed or not. The statutory affidavit and bond, intended by the law for the protection of the debtor against wrongful attachments, were, in effect, waived by the debtor. Being actually made and “given,
The bill, as amended, introduces, in the alternative, three distinct grounds relied upon for relief : 1st. That which we have already, considered; 2nd, that the assignment was executed before either of the attachments was issued or levied, but, by its terms, the conveyance to the assignees was made expressly subject to the liens of the attachments in favor of the persons named ; and, 3rd, that the assignment was executed after the levies, but pursuant to a resolution of the board of directors of the assignor, made prior to the issuance of the attachments, and' while complainant’s debt was a subsisting demand against the assignor. The resolution recited (and the bill avers the same to be true) that the Poliak Company was unable longer to carry on its business and was insolvent. The language of the first-resolve, as it is set out in the assignment, a copy of which is made an exhibit to, and part of the amended bill, is as follows: “Inasmuch as this corporation is unable to meet and pay its liabilities now due and becoming due, and is insolvent and unable longer to carry on its business (its stock in trade having been attached) that it do execute a deed of general assignment for the benefit of its creditors.” The second was : “That Ignatius Poliak,'the president of the corporation, be and he is hereby author
Considering the second ground of relief, the case thereby made may be thus stated : The board of directors of the debtor company, by resolution, declared its purpose to make a general assignment for the benefit of its creditors, and authorized its president to execute the same to Pelzer and Roman. The president undertook to exercise this authority, but, in framing the instrument, he falsely recited therein, in substance, that Cane, McCaffrey & Co., Josiah Morris & Co. and H. B. Claflin & Co., had, that day, levied attachments upon the goods of the debtor; and his conveyance to the assignees, of the debtor’s property, was made expressly subject to the liens of those attachments. The case made by this phase of the bill, not only necessarily, but in express words, excludes the idea that the assignment and attachments were parts of one transaction — all constituting a general assignment — or that the case was to be influenced by any unlawful intent to create preferences, on the parts of the debtor or attaching creditors. It is not a bill to annul the assignment, as fraudulent, but the validity of the instrument is affirmed, and sought to be enforced. The question, then, presented is, what is the effect, as to the rights of creditors, of an assignment,-for their benefit, of all the debtor’s property, subject to, the liens of certain specified attachments declared, in the instrument, to have been levied upon the property, when, in fact, no such attachments had been issued? The assignment, so far as the rights of the assignees are concerned, must, like other conveyances, be construed, and the intention of the parties determined, according to the legal effect of its terms and any extrinsic facts to which they refer, or which legitimately bear upon them. On its face, its effect is, that the assignees took the general legal title to the goods; the three attaching creditors had liens upon them to the extent of their claims, and the sheriff a special property and possession, for the purpose of enforcing the liens. But, upon extrinsic averment of a creditor, admitted by demurrer to be true, no such liens, and no such special property and posses
What we have said is, at last, nothing more than a process of reasoning leading to the proposition, that the parties to the instrument intended, by the clause in question, no more than to declare, what the law already implied, that the property should pass to the assignees, subject to attachment liens, if any, which rested upon it. If there were, in fact, no such liens existing, it is clear the parties did not intend that an interest equal to that they would have represented, if they had existed, should be excepted from the conveyance. The resolution adopted by the board of directors, and the assignment itself, show, unmistakably, an intention to make a general assignment, reserving nothing to the assignor. As neither the law nor the assignment reserved anything to the three specified creditors, because they did not, in fact, have the specified liens, and as the intention of the assignor was to reserve nothing to itself, the result is that the whole passed to the assignees. The bill makes no complaint of the assignees. It seeks no relief against them for any abuse of their trust. It cannot be regarded as a bill against them for a settlement of their trust, independent of any special equity; for it is clear the trust is not ripe for settlement. As to the complaints against the sheriff for wrongful intermeddling, on his part, it is not shown why the assignees may not move for the necessary redress. They have not been requested to do so, nor to relinquish their right in that behalf to the complainants. They are charged with no dereliction, in the premises. There is no equity in the alleged ground of relief under consideration.
As to the third ground: We have no doubt the assignment did not take effect until its execution, so as to
¡¿: Inasmuch as two of the alternative grounds of relief are thus found to be without equity, the demurrers should have been sustained on the grounds indicated by this opinion. — 3 Brick. Dig., 378, § 183. An order will be here made reversing the decretal order of the chan-, cellor, and sustaining the demurrers and remanding the cause. The bill may be amended within thirty days, with power in the chancery court, or chancellor, in vacation, to extend the time on sufficient showing.
Reversed, rendered and remanded.