Truss v. Davidson

SOMERVILLE, J. The action is one of detinue, brought by the appellee, Davidson, assignee of one Palmer, against the appellant, Truss, for a stock of merchandise levied on by the latter as sheriff under sundry writs of attachment. Unless the assignment under which the plaintiff claims title is void for fraud, there seems to be no good reason why he should not recover the goods, a.s this instrument of transfer was made and delivered on February 27th, 1888, the day before the levy of the first attachment. The assignment, under the facts of the case, took effect, if at all, from the date of its [361] •delivery to the assignee, the latter having taken immediate possession of the assigned goods.—Brown v. Lyon, 17 Ala. 657; Warner v. Jaffray, 96 N. Y. 248. The rule in this State is settled to be, that the assent of the ■creditors will be presumed to a deed' of assignment, which appropriates the property conveyed, absolutely and unconditionally, to the payment of the assignor’s debts — the instrument being free from fraud or illegality, and containing nothing which can be so construed as to be prejudicial to the rights ■of the creditors. So, while the rule is otherwise in some of the States, the settled doctrine in this State is, that the fraudulent intent of the grantor alone will not avoid a deed of assignment to creditors, unless the assignee, or the creditors, knew of, or participated in the fraud. The decisions are numerous on the foregoing propositions. Abercrombie v. Bradford, 16 Ala. 560; Governor v. Campbell, 17 Ala. 566; Rankin v. Lodor, 21 Ala. 380; Shearer v. Loftin, 26 Ala. 703; Wait on Fraud. Convey. (2d Ed.), §§316 et seq.; Burrill on Assignments (4th Ed.), § 285; 1 Brick. Dig. 129, §§ 87, 89 ; p. 132, § 123. We have examined the evidence in this case, and concur with the judge of the City Court in his conclusion that the proof is insufficient to authorize the court to find the assignment void for fraud. The assignment can not be made fraudulent by the fact that Palmer, the grantor, made sale of some of the goods embraced in his stock, prior to the execution and delivery of the assignment, and afterwards retained the proceeds of sale. Conceding these sales to be fraudulent, they were independent transactions between the assignor and mere ■strangers, prejudicial to the rights of the very creditors intended to be secured in the assignment, who in no manner participated in them; nor, so far as we see, did the assignee, Davidson, himself, the evidence showing that the sales were made before the execution of the assignment, and during Davidson’s absence from Warrior, the place of Palmer’s residence .and business. The alleged fraudulent sales can not, therefore, be treated as parts of the transfer here assailed as fraudulent, nor be permitted in any manner to vitiate the transaction. Burrill on Assignments (4th Ed.), §§355-359. The evidence excluded by the court, to which exceptions were taken, would not change the conclusions reached by us, ■even were it all admitted. Hence its exclusion, if erroneous, was error without injury. There being no fraud in the transaction, the principle announced in Townsend v. Harwell, 18 Ala. 301, has no application to the case. [362] There is no assignment of error based on the action of the court in overruling the demurrer to the complaint, and hence the argument on this point calls for no response. We may-add, however, that we see no error in this ruling. But one other point remains to be considered. The testimony satisfies us that there was an agreement on the part of both the plaintiff and the assignor, that the sheriff might sell the goods, without an order of court, and without advertisement, and at either private or public sale. The goods were sold by the sheriff as agreed on, at private sale, and brought the sum of fifteen hundred dollars. We do not construe this agreement to operate as an abandonment of the suit, for such was clearly not its intention. But, in our opinion, its effect must be to limit the recovery of the plaintiff to the amount for which the goods were sold by the sheriff. If the agreement does not have this operation, it can have none whatever. It must be supposed that, in consenting to this mode of sale, the plaintiff agreed by implication to abide by the result, and accept the price obtained by resort to such mode. The just result of the agreement is to reduce the alternate judgment of recovery to the sum of $1,500, instead of $2,325, rendered by the City Court. The judgment will be reversed, and a judgment rendered in this court for the appellee, in the sum of $1,500. The appellee will be taxed with the costs of this appeal. Reversed and rendered.