Bray & Landrum v. Ely

BRICKELL, C. J. The principles which govern the determination of the validity of sales pr conveyances made by an insolvent debtor, or a debtor in failing circumstances, to a creditor in payment of a preexisting debt, having notice of his condition or insolvency, when the sale or conveyance is attacked for fraud by other creditors, have been of such frequent consideration and decision, that it would seem a necessity for their reitera■tion could scarcely occur. So far as now relevant, in First National Bank of Birmingham v. Smith, 93 Ala. 97, [557] they were concisely and clearly summarized by Chief Justice Ston3s : “An insolvent debtor may select which of his creditors, one or more, he will pay, and pay them in full, and thus disable himself to pay the others anything ; and it makes no difference if the one or more preferred creditors know the effect of the transaction will be to deprive the debter of all means with which to pay his other debts. Nor is the wish, motive, or intention of the debtor a material inquiry, if the requisite conditions exist. These conditions, in a case like the present, are : First, the debt must.be bona fide, and enforceable, not simulated. Second, the payment must be absolute ; and if made in property, must not be materially in excess of the debt. Third, no pecuniary benefit, or consideration of value must enure or be secured to the debtor. The several instructions given the jury on the request of the appellee, state these principles substantially, though in varying language. Some, if not all of them, may be subject to the objection that they are argumentative, now urged by the appellants, and for that reason could have been properly refused by the court below. There is no error in the refusal of an argumentative instruction, for the reason that instructions should be clear and concise, presenting only the point or matter of law, on which the party presenting them may rely. If the party requesting them will not so frame the instructions, but passing beyond the presentation of the point or matter of law, injects an argument of the case, the trial court does not err in the refusal of the instruction. But, in'our practice, the giving or refusal of such instructions rests largely in the discretion of the trial court, which is not revisable on error.—Whilden v. M. & P. Bank, 64 Ala. 1. We do not regard either of the instructions as assuming as proved, oras asserting, any fact, either disputed or dependent on the weight or credibility of the evidence. If it was apprehended that either of them gave an undue prominence to any phase of the evidence or of the case, the appellants should have protected themselves from injury, by a request for explanatory or additional instructions. There were three causes or grounds assigned in the motion for a new trial. The first was, that - the verdict of the jury was contrary to the general charge-of the [558] court. The charge is not incorporated in the record, and in its absence, there can be no revision of the refusal of the trial court to sustain the motion for this cause. The second ground or cause, alleges that the verdict is contrary to instructions given on the request of the appellants. The verdict negatives the existence of the facts on which these instructions were based. Unless the facts had been proved to exist,. there could not be in the verdict repugnancy to, or inconsistency with, those instructions. The finding against the existence of the facts, renders the verdict in harmony with, and not repugnant to them. The third ground or ’cause assigned was that the verdict was contrary to the evidence. In Cobb v. Malone, 92 Ala. 630, the rule was laid down, (and there has been some frequent approval of it';, that an order refusing a new trial on the ground that the verdict is unsupported by, or contrary to, the evidence, will not be reversed on appeal, “unless, after, allowing all reasonable presumption of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court, that it is wrong and unjust.” We are not convinced that the verdict does not find support in the evidence. Let the judgment be affirmed.