104 Ala. 375 | Ala. | 1893
The bill in this case is wholly without equity. It is filed by certain creditors of D. D. Strickland, open to all; and, we gather from the brief, that its purpose is to have a certain transfer of a stock of goods made by Strickland to his wife, Eliza Strickland, declared a general assignment for the benefit of all his creditors, under section 1737 of the Code, as amended by the act of February 21, 1893. — Acts 1892-93, p. 1046. Prior to this amendatory act, an absolute.sale bv a debtor of all his property, either upon a present consideration or in payment of an existing debt, was not within the statute, and could not be declared a general assignment for the benefit of creditors. The amendment makes no change whatever in the existing law except to bring within the statute absolute conveyances by a debtor of substantially all his property in payment of a prior debt ; placing such conveyances upon a similar footing with conveyances for the security of debts, prior to the amendment. This bill shows that the conveyance in question was upon an express, present, cash consideration of three thousand dollars. It is fatally bad also in that it shows, by affirmative averments, that the conveyance does not embrace substantially all the debtor’s property subject to his debts; for, whilst the pleader alleges that the goods conveyed embraced substantially all the property owned by the grantor, yet the allegation is immediately followed by, and connected with, the express averment that said D. D. Strickland has book accounts, notes and mortgages subject to the satisfaction of the creditors’ claims ; and there is a prayer for a receiver to take charge of them, though they have no connection whatever with the conveyance to Mrs. Strickland. Taking the averments most strongly against the pleader, the repugnant allegation that the conveyance embraced substantially all the debtor’s property will be rejected, in considering the equity of the bill.
The special prayer of the bill is that a receiver be appointed to take possession of the goods conveyed to Mrs. .Strickland, and the accounts, notes and mortgages, with
It results from the want of equity in the bill that the receiver was improperly appointed, and the chancellor erred in confirming his appointment. The order in that behalf will be reversed, and an order here made vacating the. appointment of the receiver.
If the bill shall be so amended as to allege that the conveyance to Mrs. Strickland was in payment of prior indebtedness owing by her husband to her, and the averment that there was other property belonging to the grantor, D. D. Strickland, shall be stricken out, the bill will contain equity, and upon the bill as amended being verified, the appointment of a receiver will be proper,
Reversed, rendered and remanded.