51 So. 315 | Ala. | 1909
The mortgage in this ease has been heretofore held void as against creditors, whether with or without lien — meaning, of course, as to simple contract creditors, those who were damaged thereby, those who had an enforceable claim against the property conveyed ; and we are not disposed to recede, upon this appeal, from the conclusion that the mortgage in question is void as against creditors, whether with or without a lien.
But a fact, not considered upon the former appeal (Ryan v. Young, 147 Ala. 668, 41 South. 954), is presented by the present record for consideration, and that is fraud without damage — conceding that the mortgage was void. If Cross sold the plaintiff the stock of goods and put her in possession before the levy of the attachment, and it was worth less than $1,000 and was all the property owned by him at the time of the conveyance, her title would be good as against creditors without a lien. In other words, if the property sold to the plaintiff could have been successfully claimed by Cross as exempt, then it could not have been reached by his simple creditors, regardless of the bona fides of the sale. It is true, that this transaction was considered in the case of Brock v. Berry, Demoville & Co., 132 Ala. 95, 31 South. 517, 90 Am. St. Rep. 896, and it was there held that the .value of the property mortgaged was worth over $1,000, and the question of exemptions could not arise. But in the present case, even if the mortgage was not valid, and the property levied on had not been thereby conveyed to the plaintiff, there is proof 'that it was sold to her by Cross before the levy, that it was worth less than $1,000 and
The trial court erred in giving charge B, requested by the defendant. If not otherwise bad, it ignores any claim or title Mrs. Young may have acquired under the sale, notwithstanding the mortgage was not valid as a lien or conveyance. As we view this case, if Brock was the landlord of Cross, under a contract, express or implied, for the payment of rent, he had a superior lien upon all goods in the house, as the plaintiff’s mortgage was void as to him or all other creditors, and as to all property thereby conveyed. On the other hand, if he had no lien as landlord, the purchase of the goods by the plaintiff before the levy gave her a good title to same, if less than Cross’s exemptions and he was entitled to same as such, notwithstanding Brock may have been a simple creditor without a lien.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.