Stetson & Co. v. Miller

36 Ala. 642 | Ala. | 1860

STONE, J.

When this case was before in this court, (32 Ala. 161,) we said: “We have examined all the objections urged against the validity of thesuleed exhibited with the bill; and we are fully convinced^ and therefore decide, that there is nothing on its face which . renders it void as to the complainants, or authorizes any court to declare it void as to them.”

This case, as presented on the final trial in the pleadings and proof, presents but few features worthy of remark, which were not presented on the former trial in this court.

First: There was some delay, and there were some postponements in making sale of the merchandise; and the sales were chiefly on credit. Looking into the facts and circumstances attending the sales, wé think good and satisfactory reasons are given for most, if not for all of them. But if the record failed to respond to these inquiries, we can readily perceive that, in making sale of such commodities, so as best to promote the interest .of the beneficiaries, it might, and probably would, benefit the creditors provided for, as also the general creditors of the assignor, if the assignee were, in certain states of the money-market, to postpone the sale, or sell on reasonable terms of credit. ¥e find nothing in this record to convince us that, in this case, the assignee was not influenced by an honest and prudent policy in making sale of the merchandise ; aud hence we hold, that in this objection there is not enough to justify us in pronouncing the deed fraudulent. — Dubose v. Dubose, 7 Ala. 235; Planters & Merchants’ Bank v. Clarke, ib. 765; Tarver v. Roffe, ib. 873; Abercrombie v. Bradford, 16 Ala. 560; Doe, ex dem. v. Pl. & Mer. Bank, 22 Ala. 238.

Second: It is urged, that some of the debts secured by the deed were afterwards paid by the assignor, with funds not conveyed by the assignment. It seem to us that this repels, rather than strengthens the imputation of fraud. It shows both an intention in the grantor to discharge his debts, and a willingness to employ for that purpose means which still remained in his control. Moreover, as remarked by the chancellor, such payment with outside means would necessarily tend to augment any surplus that might remain in the hands of the trustee, and thus localize and consolidate a tangible fund for the payment of unpreferred debts.

ThirdThe testimony of the witnesses 'Whitfield and Van. Iloose is ineffectual to overturn this deed, for two reasons: firsts much of the conversation of Mr. Miller, shown by that evidence, tends rather to show promises made by him, and afterwards broken, than a purpose to delay, hinder or defraud his creditors; and second, the beneficiaries in the deed were bona-fide creditors, and there is no evidence that they participated in, or knew of those conversations. The testimony fails to convince us that Mr. Miller had any other purpose than to give a preference to some of his creditors over others. This he had a right to. do. — See this case at the former term.

[2.] Both the bill and the testimony show, that Mr. Miller had much property, and of considerable value, outside of the deed. ,. Hence, this is not shown to have been a general assignment, so as to destroy the preference.

We find no error in the record, and the. decree of the chancellor is affirmed.