Avery & Sons v. Carter

Wade, C. J. T-he petition for certiorari disclosed the fact that the defendant in fi. fa. had conveyed her stock of merchandise in bulk to her father, the claimant, and that, to secure the payment of a certain sum that he loaned to her, she executed a security deed purporting to pass title to him. This transaction did not come within the purview of sections 3228 and 3229 of the Civil Code of 1910; and therefore no presumption that it was fraudulent arose by reason of the fact that the mortgagor made no attempt to comply with the provisions of section 3228 as to -furnishing a vendee with the statement under oath required by the Civil Code, § 3226, and without first giving to each creditor of the mortgagor a notice of the transaction as required by the last-mentioned section where a sale of merchandise in bulk is effected. The statutes relative to sales in bulk, being in derogation of the common law, must be construed strictly, and the judge of the superior court did not err in holding that a security deed was not covered by the provisions of the statutes relating thereto, and in declining to sanction the certiorari. Judgment affirmed.