Powell, Brother & Co. v. Kelly Bros. & Porter

82 Ga. 1 | Ga. | 1889

Simmons, Justice.

1. We have carefully read the pleadings and affidavits in this case, and in our opinion there was no error in the court below in refusing the injunction and the appointment of a receiver as prayed for; nor was there any error, under the facts as disclosed by this record, in holding that the transaction between these parties was a sale and not an assignment. The paper, on its face, is an absolute bill of sale. It sells and transfers to Whitney the whole stock of goods, mortgages, notes, accounts, etc., in payment of a pre-existing debt which Kelly Brothers & Porter owed to Whitney; and Whitney agrees therein that the indebtedness which he holds against said firm shall be settled in consideration of said sale to him of said goods. He also obligates himself to pay certain other preferred creditors mentioned in said bill of sale. The obligation assumed by Whitney is not to pay these other preferred creditors out of the proceeds of the goods, but he assumes the debts and obligates himself absolutely to pay them, whether the proceeds of the sale of the goods are sufficient or not. Under this obligation, if the goods were destroyed, Whitney would still be bound to pay these debts. So far as we can discover from the bill of sale and the facts disclosed by this record, this seems to have been a bona fide transaction between these parties — a transaction which does not violate any law in this State, but which the law expressly sanctions, — that is, that a debtor may prefer certain creditors to others. So far as we can discover from the facts in the record, there is no trust reserved in this bill of sale, either expressly, impliedly or secretly, to Kelly Brothers & Porter, or to any one oí them. While the form and words of an assignment and bill of sale are generally the same, the element of trust, either express, implied or secret, distinguishes an assignment from a sale. Burrill, in his work on Assignments, page 9, says: “An important distinction between the two modes of transfer arises out of the character of a trust, which belongs to an assignment. A sale (in cases free from fraud) is, on delivery of the thing sold and receipt of the consideration, a complete transaction, passing absolutely and irrevocably all the seller’s interest in the subject of it, without reversion or return under any circumstances. An assignment is likewise an absolute conveyance by which both the legal and equitable estate is divested out of the grantor, but the title vested in the assignee is subject to the uses and trusts in favor of the creditors, and upon their satisfaction a trust results in favor of the assignor in the residue of the unappropriated property or its proceeds. A transfer of specific property to a creditor in discharge of a pre-exisiting debt is in effect a sale. An assignment of itself does not satisfy the claims of the creditors to any extent, but provides a method for raising the means with which to pay them. Sales are often subject to covenants on the part of the buyer and seller, from which assignments are free. An assignee is not liable to the payment of encumbrances to the same extent as a purchaser.”

This being the law, and the facts in the record showing that this was a bona fide sale between the parties, and that there was no trust, either open or secret, reserved to the grantors or to any one for them, the court did not err in holding that it was a sale and not an assignment. Watkins vs. Pope, 38 Ga. 514; Johnson vs. McGrew, 11 Withrow (Iowa), 151; Anderson vs. Smith, 5 Blackf. (Ind.) 395. The case of Coggins vs. Stephens, 73 Ga. 414, relied upon by counsel for the plaintiffs in error, was a case in which the facts were very different from the facts in this case. The entire stock of goods and other property in that case greatly exceeded in value the consideration named in the deed, and there was evidence enough in that case to authorize a jury to find that there was a secret trust. In this case the trust element is lacking, and the evidence shows that the property sold is of much less value than the debt of Whitney and those which he has assumed.

2. But it was argued by counsel for the plaintiffs in error that whether this was a sale or an assignment, it is still void, under the last clause of section 1953 of the code. That section is as follows : “A debtor may prefer one creditor to another, and to that end he may bona fide give a lien by mortgage or other legal means,- or he may sell in payment of the debt, or he may transfer negotiable papers as collateral security, the surplus in such cases not being reserved for his own benefit or that of any other favored creditor, to the exclusion of other creditors.”

It is argued that the facts of this case show that there will be a surplus left after the payment of Whitney’s debt, and that this bill of sale reserves that surplus for other favored creditors than Whitney, and to the exclusion of these complainants, and that therefore, under the latter part of this section, said sale to Whitney is void. If these words, “or that of any other favored creditor, to the exclusion of other creditors,” are still of force as the law of this State, it would seem that this point -is well-taken. This part of the section at first gave us some trouble, but after a careful examination thereof, and an investigation as to how these words originated or became incorporated in the code, we have come to the conclusion that they were repealed by the act of 23d February, 1866. (Acts 1866, p. 20.) Prior to the act of 1866, the policy .of this State, as shown by the act of 1818, was that a debtor should not prefer one creditor to another, but there was a proviso to that act. that, a debtor might extinguish his debt to a creditor by a bona fide sale of property for that purpose, not reserving any part thereof in trust for himself or any one else. Under this proviso, this court made several'decisions, notably in the ease of Eastman vs. McAlpin, 1 Kelly, 157, and some others on the same line, where a debtor was allowed to sell his property to a creditor and prefer other creditors as to the surplus. Other decisions were made somewhat in conflict with these. To the codifiers the' former of these decisions doubtless seemed to be inconsistent with the act of 1818, because they allowed a preference of creditors in the disposal of the surplus. In order to harmonize these decisions and make the policy of the law consistent with the plain provisions of the act of 1818, we think the codifiers added the words above quoted, which made the whole scheme and policy of the act of 1818 consistent; so that while a debtor could still make a bona fide sale of his property to pay a debt, he could not, under these words, prefer one creditor to another by directing a surplus to be paid to the preferred creditor. The law thus stood from the time of the adoption of the code to 1866, when the legislature thought proper to change the policy of the State in regard to the preference of creditors by a debtor, and they passed the act of that year, in which they allowed a debtor to prefer one creditor to another. That act, in our opinion, repealed by implication the latter part of section 1953, and those words should have been stricken from the section when the code was subsequently revised. See Endlich on Interpretation of Statutes, §195 et seq. These words are in direct conflict with the policy of the act of 1866. That act, as said before, allows a debtor to prefer one creditor to another, and we do not see any reason now why a debtor may not sell his property bona fide to pay a debt, and devote the surplus, if there is any, to a particular creditor or creditors, in preference to other creditors. The act does not prescribe any particular manner or form in which a debtor may prefer one creditor to another. In our opinion, he may do it by an assignment of all his property to one creditor, or a class of creditors, or he may do it by selling his property bona fide to one creditor in payment of his debt, and devoting the surplus to the payment of preferred creditors.

It is argued, however, that to allow sales of the kind now under consideration to stand, would be a virtual repeal of the policy of the legislature in regard to assignments ; that that policy requires the assignor to attach to the assignment a list of creditors and the amount of indebtedness, and declares that unless this is done, the assignment shall be void. This court has been very strict in the enforcement of these statutes in regard to assignments proper; because it seemed to be the policy of the legislature to require of the assignor a clean showing as to all of his property, his debts and his creditors. This was required, as we have decided, for the benefit and protection of the creditors. These acts, as will be seen by referencé thereto, apply only to assignments, and do not apply to sales, especially sales like the one under consideration; the facts in this record showing that Kelly Brothers & Porter did not sell to Whitney the whole of their property, but only a part thereof, and sold the other portion to some other creditors.

3. It will be observed that we have not discussed the question of actual concealed fraud, or of this sale being made to hinder or delay creditors. These were matters of fact to be passed on first by the court below, and then by a jury; and as he did not see proper to grant an injunction upon these grounds, we cannot say that he erred therein.

This case we presume will (if the parties desire) "be submitted to a jury upon all these questions, and if they should find from the evidence that this was a fraudulent sale, or that it was made to hinder, delay or defraud creditors, doubtless the learned judge below will sanction their finding should the evidence authorize it.

Judgment affirmed.