105 Ala. 298 | Ala. | 1894
About the 21st of December, 1892, the Fort Payne Bank, Huida Marks, Valeria Less, Isaac Less, H. L. Marks and L. Koch & Co., as creditors of Charles Less, sued out separate attachments which were levied by the sheriff on stock of goods belonging to their debtor. The goods were advertised for sale by the sheriff. Prior to the day of sale complainants, also creditors of Charles Less, filed their bill of complaint, and alleged, that the claims of Huida Marks, Valeria Less, Isaac Less, and H. L. Marks were false and simulated, and that all the attaching creditors had colluded with Charles Less for the purpose of defrauding complainants, and that the attachments were sued out and levied on the goods with the connivance and consent of Charles Less, so as to place them beyond the reach of his creditors. The bill prayed that the sheriff be enjoined from selling the property, and that the attachments be set aside and annulled, and that the property be subjected to claims of complainants. Charles Less claimed his exemptions. Upon a proper showing, the goods were subsequently sold under an order of the court, and the money paid over to the sheriff. The goods were knocked down J. E. Russell as the purchaser. After the sale by the sheriff, the complainants further amended
We will examine the facts in support of the bill. First. Huida Marks is the mother-in-law of defendant, Charles Less ; Valeria Less is his wife ; H. L. Marks is his brother-in-law; Isaac Less,his brother. These are attaching creditors and defendants to the bill. The evidence also shows that Minnie Jacobs, a sister, and Muscovitz, another brother-in-law of Charles Less, were parties in the transaction. These two latter persons are not parties to the suit, though the former is interested in the result, and the latter had a part in the general scheme of Charles Less assigned to him. We deem it unnecessary here to go over the facts as regards Charles Less. That he deliberately deceived his creditors as to his condition, in order to induce them to sell him large stocks of goods, must be conceded, if we are to credit the uncontradicted evidence of several witnesses, and that he resorted to many “ways that are dark” which he has not undertaken to explain, calculated to place his effects beyond the reach of creditors, is clearly established. Many of those charged with collusion are his near relatives; a fact not to be overlooked in weighing the evidence. The claims of these attaching relatives, though living far apart, are found at the same time in the hands of the same attorneys for collection, and who also represent Charles Less in his business and in this suit. Huida Marks living in St, Louis, acts with du
We might go further into details, and show other acts utterly inconsistent with an upright and fair purpose on the part of Charles Less, Huida Marks, Valeria Less and H. L. Marks. We deem it unnecessary to comment on the testimony of Mr. Campbell and Mr. Russell. Whatever our conclusion may be, in regard to the part taken by them in the sale and purchase of the goods and their transfer to Huida Marks, could not affect the debt of the bank. We think the evidence shows that the debt due the bank was a bona fide claim, and that it has not been paid. We are of opinion that the attachments sued out by the bank and by Koch & Co. were to collect bona fide debts, and for this purpose. The evidence is not sufficient to implicate Isaac Less, who lived in a distant State, with the collusive purposes and conduct of the other relatives. It is true that he received information from some one as to Charles Less’ condition, for his claim was with the others for collection by attachment, but this is not enough. Pie was not examined and the validity of his claim is fairly well established.
Under all the evidence, our conclusion is, that complainants were entitled to relief, as against Huida Marks, Valeria Less and H. L. Marks. These parties may be entitled to a judgment in their attachment suits against Charles Less. That is a matter between them and Charles Less, and in which complainants may not be concerned in this proceeding.
The decree of the chancery court will be affirmed so far as it dismissed the bill against the Fort Payne Bank, Koch & Co. and Isaac Less. It will be reversed as to Charles Less, Huida Marks, Valeria Less and H. L. Marks ; and a decree will be here rendered reinstating the injunction and decreeing relief to complainants as to these latter defendants, and directing the sheriff, after satisfying the judgments which have been or may be recovered by the attaching creditors as to whom the bill is dismissed, to retain the balance subject to further proceedings in the chancery court. The register will hold a reference, and ascertain and report the amounts due complainants, and report the same to the next term of the chancery court. The appellants will be charged with one-third of the costs of appeal, and Charles Less, Huida Marks and H. L. Marks, the remaining two-thirds.