Southern Cotton Oil Co. v. Harris

57 So. 854 | Ala. | 1912

SIMPSON, J.

This action is in trespass, by the appellee against the appellants, for wrongfully taking a stock of goods, wares, and merchandise.

Plea 3, besides being confusing in alleging that the “plaintiff” alleges the property to be the property of J. W. Batliffe, is subject to the grounds of demurrer that it does not déscribe the suit, etc., with sufficient certainty (not stating against whom the suit was), and fails to show that the writ of attachment was ever returned into court. — Olmstead v. Thompson, 91 Ala. 130, 8 South. 755; Daniel v. Hardwick, 88 Ala. 557, 7 South. 188; Womack v. Bird, 63 Ala. 500.

Moreover, the defendants had the benefit of the facts attempted to be set up in said plea by pleas 5, 6, and 7. There was no reversible error in sustaining the demurrer to said third plea.

The demurrer to plea 4 was properly sustained. Sa,id plea does not show under what process the property was sold, nor whether there was any order or process authorizing him to sell the same, nor that any process was returned into court.

It also undertakes to state the facts constituting the fraud, and the facts stated do not show fraud. While, in a case at law, in which the issue is as to the title to real or personal property, one party claiming that his title is superior to that of the other because the other’s was acquired under a fraudulent conveyance, it is not necessary to allege in the pleadings the facts constituting the fraud with the same degree of particularity that is requisite in a bill in chancery to cancel a conveyance, this being a matter of proof on the issue of title vel non (Pollak v. Searcy, 84 Ala. 259, 261, et seq., 4 South. 137; Moore, Marsh & Co. v. Penn & Co., 95 Ala. 200, 202, 10 South. 343; Montgomery, Dryer & Co. v. Bayliss, 96 Ala. 342, 11 South. 198; Teague, Barnett & Co. v. Bass, 131 Ala. 422, 426, 31 South. 4; Gunn v. Hardy, et al., 130 Ala. 642, 652, 31 South. 443; Reed v. Smith, 14 Ala. 380; Gilliland v. Fenn, 90 Ala. 230, 8 South. 15, 9 L. R. A. 413; High et al. v. Helms, 14 Ala. 350, 48 Am. Dec. 103; Mason v. Vestal, 88 Cal. 396, 26 Pac. 213, 22 Am. St. Rep. 310; Code, § 4293), yet, when the pleader undertakes to state the facts, the facts must show fraud. — 3 Mayfl. Dig. p. 886, and cases cited.

There is nothing in the case of Gillespie v. McClesky, 160 Ala. 289, 49 South. 362, in conflict with this statement. In that case the plaintiff was claiming under a mortgage, fraudulent on its face — the pleadings are not all set out — and, after discussing the. points on pleadings and charges, the court merely states that “there is another principle, which is brought out by seme of the pleadings,” which is conclusive of the general proposition that the plaintiff could not recover in any event. The court did not discuss at all what was a necessary averment on that issue.

There was no error in the action of the court in regard to the statement by counsel for defendants that he “proposed to show that Mr. Harris married stock of goods and continued in business.” The question is unintelligible. It was probably intended to bring out the facts treated of in subsequent questions.

The subsequent questions as to whether the witness’ wife had a stock of goods when he married her, and whether he started business on that stock of goods, were objected to, and the objections sustained. In this there was no error. It is not disputed' that the witness was in business himself, and as to whether he got the goods from his wife to start business on was a question between him and his wife, and had no bearing on the questions as to whether he had purchased the goods in question from Batliffe. The fact that he got a stock of goods from his wife has no tendency to show that he had no means.

There was no error in sustaining the objections to the questions to the witness, Batliffe, as to his insolvency and as to his informing the plaintiff of his condition. It has long been the law of this state that a debtor has a right to prefer one creditor, and that though he be insolvent, and though that fact be known to the purchaser, he may sell his property for a fair consideration to his creditor, in payment of an existing debt. Consequently the matters were irrelevant in this case. — Crawford et al. v. Kirksey et al., 55 Ala. 282, 293, 28 Am. Rep. 704; Danner & Co. v. Brewer & Co., 69 Ala. 200; Spira v. Hornthall, W. & W. Co., 77 Ala. 145; Tryon et. al. v. Flournoy & Epping et al., 80 Ala. 325; Carter Bros. & Co. v. Coleman et al., 84 Ala. 258, 4 South. 151.

Plea 8 was not filed until after this testimony was offered, and, without deciding whether that plea raised any issue, it cannot be looked to in determining the correctness of the court’s action in this particular.

As to the overruling of the objection to the question to the witness Graves (the sheriff), as to whether he had given the plaintiff notice of the second levy, there was no reversible error. The matter was immaterial to the issues in this case, and, at any rate, the answer was that the witness did not know. — Brown v. Johnston Bros., 135 Ala. 609, 613, 33 South. 683.

•There was no reversible error in that part of the court’s oral charge to the effect that the attachment issued January 3, 1908, Avas not sufficient to sustain the defendant’s plea of justification under process. The record of the proceedings, under Avhich the justification is claimed, sIioavs that the levy Avas quashed under claim of exemptions, and it is difficult to see how such a record could support the claim that the property was subject to the levy. — Daniel v. Hardwick, 88 Ala. 557, 7 South. 188.

While charge 1, given at the request of the plaintiff, possibly might have been expressed with more strict accuracy, yet the Avords, “the goods the subject of this suit,” evidently refer to the goods purchased from Ratliffe by Harris, as the whole subject of the litigation is as to the validity of that purchase, although the defendants do claim that the whole stock of goods in the store is liable to the levy by reason of the purchased goods having been mingled Avith the others. As to assuming the fact that the goods had been purchased, there is no conflict in the evidence on that subject. All the Avitnesses who testify on that subject agree that they Avere purchased, the only question being whether the purchase Avas valid. Also the subsequent part of the charge requires the jury to find “that plaintiff purchased said stock of goods,” etc.

The judgment of the court is affirmed.

Affirmed.

All the Justices concur, save Dowdell, C. J., not sitting.