Stephens v. Regenstein & Co.

STONE, C. J. The bill of exceptions in this record affirms that it contains all the evidence. On the question which we consider decisive of the case, the testimony comes from the claimant — appellant here — and it is free from conflict. One of the terms of the sale from T. A. Stephens, the debtor, to B. E. Stephens, the claimant, was, that the business should be continued in the name of said B. E., the purchaser, and that T. A. Stephens, the failing debtor, should be placed in control and management of it at a monthlv salary of forty dollars. B. E. Stephens, the purchaser, knew his brother T. A. Stephens was insolvent, and that the purpose of the sale was to enable him to prefer certain creditors, of whom his mother was one. The sale was for money. One of the direct results of the sale was, that by the agreement the failing debtor secured to himself a paying employment, which but for the sale and agreement he would not have had. This was a benefit secured to him, which rendered the transaction fraudulent, as to that part of the property conveyed which was in excess of the debtor’s exemptions.—McDowell v. Steele, 87 Ala. 493, and authorities cited; Knowles v. Street, Ib. 357. The recovery in this case was only for the excess above T. A. Stephens’ exemptions, and to that extent the plaintiff' [563] was clearly entitled to a verdict. The general charge in favor of plaintiffs, if asked, should have been given, which would have secured to them the precise recovery they obtained. Under such circumstances, we will not inquire whether or not error was committed in charges given or refused. Such errors, if any were committed, were without injury.—Pritchett v. Pollock, 82 Ala. 169; Smith v. Ga. Pac. Railway Co., at present term. Affirmed.