Southern Suspender Co. v. Van Borries

McCLELLAN, J. The complaint contains but one count. It claims damages for a trespass by defendants upon certain land, and for wrongfully taking therefrom certain personal property. Several grounds of demurrer were interposed to it* and overruled. The action of the City Court, on each ground assigned, is here assigned as error; but the argument of counsel only presents for our review the ruling with respect to the second ground. It is as follows : “For that said declaration* in the same count, alleges a trespass in taking goods, and a trespass to lands,” The manifest theory of this demurrer is, that the action of trespass guare clausum fregit, et de lonis asgportavit, is unknown to our law. The position is untenable. Herndon v. Bartlett, 4 Port. 481. 2. The bill of exceptions does not purport to set out all the evidence. Hence, even admitting that, in such action, a breaking of plaintiff’s close must be shown, and that no evidence of that fact appears in this record, the appellant can not be benefitted thereby; since it will be presumed, in support of the rulings below on charges asked and refused, that such evidence was adduced—Posey v. State, 79 Ala. 45; Guilmartin v. Clarke, 76 Ala. 204; 3 Brick. Dig. 406, § 43. 3. The grantor in the assignment to plaintiff was a resident of Kentucky. The deed was executed there. The assignor was entitled only to such exemptions of property from liability to the satisfaction of his debts as was secured to him under the laws of that State. Those laws were put in evidence. They provide for the exemption of only specific items or classes of property of domestic use, such as household and kitchen furniture; and this, irrespective of value. Hence it is that the deed of assignment, which reserved such property “as is exempt by law from execution,” is not bad as being ex-ecutory merely, since no act of segregation was necessary to the setting apart and identification of the property reserved* the law itself performing that function; nor is it bad for reserving a benefit to the grantor, since he had a right to exclude from his grant the property thus exempted. 4. None of the property involved here was of that class reserved as exempted to the grantor. So that no advantage could accrue to the defendants from the consideration that the exemption statute of Kentucky will not be allowed to operate in Alabama, against a domestic creditor. 5. The remaining assignments of error are based on the [510] •assumption, that the deed of assignment relied on by the plaintiff, and under which he held the property, was, as presented in this case, voluntary, and therefore void against existing creditors, as it was not made to appear that any creditor had elected to take under it, nor even that there were, creditors, other than the defendant corporation, to accept its provisions. The court’s rulings in this regard would, if need be, be supported, by indulging the presumption before adverted to, that there was evidence of other debts and of the election of other creditors to accept the provisions made for them in the assignment, it not appearing that all the evidence is set out in the bill of exceptions. But our approval of the rulings of the trial court in this behalf need not be rested on this consideration. The case of Reynolds v. Collins, 78 Ala. 94, is decisive of the point in question adversely to the appellant’s contention. It is there held, on a state of facts strikingly like that involved here, that in the absence of evidence of the (attaching) creditor’s debt being antecedent to the making of the assignment, and in the absence of evidence of actual fraud, the assignee’s superiority of right is shown by proof of its legal and authorized execution, antedating the levy of the attachment. In such case, the recitals of the assignment are evidence, prima facie, of a sufficient consideration, the mere existence of debts other than that of the attaching creditor being a sufficient consideration, and the recitals of the deed sufficient evidence of their existence. The assignment in the case at bar was made on December 28th, 1887. The only evidence offered with respect to the debt of the attaching creditor, tended to show that it was an existing liability of the assignor on December 30th, 1887, when the attachment was issued. Upon this evidence, the legal conclusion is, that the debt was subsequent in date of existence to the execution of the assignment, and hence, that as against it the recitals of the assignment are sufficient evidence of other debts, constituting a consideration for the deed.—Gordon v. McIlwain, 82 Ala. 247. What we have said covers the several assignments of error which have been insisted on in argument, and determines them against the appellant. We have not considered the questions arising on the motion to strike the bill of exceptions from the record, because substantially the same result has been reached as had the bill been stricken out. The judgment of the City Court is affirmed.