Smith v. Heineman

BRICKELL, C. J. This is an action in which the appellees were plaintiffs, against the appellant Smith, as sheriff of Jefferson county, and the sureties on his official bond. The complaint contains two counts. In the first, the breach assigned is, that on the 12th day of January, 1891, an attachment in favor of plaintiffs against certain persons as partners under the name of Stanley & Co., was placed in the hands of the sheriff, and that on January 14th, he levied the same upon certain described personal property. That plaintiffs obtained judgment in the attachment suit June 5th, 1891, and condemnation of the property levied on, and that on July 6th, an order was issued directing a sale by the sheriff of the attached property, but that the sheriff failed to sell or account for the same. In the second count, the issue of the attachment, and its levy by the sheriff is alleged as in the first count; and it is also averred that the defendants had sufficient property in the county of Jefferson, subject to levy, to satisfy the demands of the plaintiffs, but that the sheriff had failed to levy upon such property. Demurrers to all the pleas except the eighth were overruled, and as to the eighth were properly sustained. The plea was addressed to the whole complaint, but answered only the first count.- — Kennon v. W. U. Tel. Co., 92 Ala. 399. It also affirmatively appears, that the defendants had, under other pleas, the full benefit of every fact alleged in the special plea; so that if error had intervened, it would have been error without injury. — Owings v. Binford, 80 Ala. 421. The fact that the sheriff received the attachment and levied it upon certain property as the property of the defendants, is uncontroverted. As to the property so levied upon, the presumption obtains that it was liable to the attachment. — Wilson v. Brown, 58 Ala. 62; Abbott v. Gillespy, 75 Ala. 180. The presumption is not conclusive; and it was permissible for the defendants to show that — 203 — the property was not, in fact, subject to levy. — Wilson v. Strobach, 59 Ala. 488. It is not contended that the approval by the sheriff of the claim bond, tendered by Edwards relieves the defendants from liability to account for the property on which the levy was made; nor removes from them the burden of proving that the property was not subject to the levy. Unaccompanied as the bond was by the affidavit the statute requires, a trial of the right of property was not instituted, and the delivery of the property to Edwards, was not thereby authorized. — Walker v. Ivey, 74 Ala. 475; Graham v. Hughes, 77 Ala. 590. The insistence on the part of the appellants, is, first, that the property in fact belonged to Edwards; next, that if it did not, and it and all other property which plaintiffs insisted was subject to levy, be treated as property of the defandants, it was all less in value than the amount exempt by law; and lastly, if not so exempt, the value as fixed by the court (trying the case without a jury) was too large. The sale by Stanley & Co., or Nat. Stanley, to Edwards, was of all the property in both places of business in the city of Birmingham, and it is not insisted that defendants owned any other property. The primary question is as to the validity of the sale. The court below, upon the evidence, answered this question negatively, and we are not convinced there was error in the conclusion. Upon this inquiry, we do not deem it necessary to refer to more than one phase of the evidence. We have many times drawn the distinction between a purchase of property in payment of an antecedent debt, and a purchase on present consideration. In respect to the latter, we have repeatedly held that if the intent of the seller was to hinder, delay or defraud creditors and the buyer knew of such intent, or was informed of such circumstances as would lead a person of ordinary care and prudence to institute inquiry which, if followed up, would have disclosed the intent, then the transaction is fraudulent though the vendee may pay an adequate and valuable consideration. — Crawford v. Kirksey, 55 Ala. 283; Lehman v. Kelly, 68 Ala. 192; Dollins & Adams v. Pollock & Co., 89 Ala. 351; Schaungut's Admr. v. Udell, 93 Ala. 302. On January 6th, Nat. Stanley purchased the interest of his partner — 204 — Johnson in the firm' assets on an agreement to relieve Johnson from the partnership debts and the payment of seven hundred dollars in money. In the transaction, Hinkle, it was assumed, had no interest, so that the interest of Johnson was one-lialf. The debts at that time were about two thousand dollars. Assuming Johnson’s liability as between the partners to have been one-half and the bonus paid him to have been seven hundred dollars, we would have seventeen hundred dollars as representing half the value of the property, or thirty-four hundred dollars for the whole on January 6th. The fact admitted in argument for appellants and disclosed by the evidence, that Edwards knew of this sale, knew that Stanley assumed all liabilities and paid seven hundred dollars excess for Johnson’s half interest, is urged by the appellants as disclosing Edwards’ want of knowledge that Stanley & Co. were insolvent or in embarrassed circumstances. Dissociated from later occurrences and standing alone, such might be the inference. But when' it appears that Edwards claims to have bought all the property two days afterwards at $2,200 —or $1,200 less than the estimate placed on it in the transaction between Stanley and Johnson — the inference is reversed. If the assets as compared with the liabilities were sufficient to justify the payment of seven hundred dollars premium for Johnson’s half interest on the 6th, was it not highly suggestive to Edwards that something was wrong, when, two days later, the same property was offered to him at the reduction named? He must have assumed either that Stanley had agreed to pay more than the property was worth, in which event the argument of the appellants in this aspect falls to the ground, or that some exigency had arisen in two days of sufficient importance to induce Stanley to suffer a large loss. Knowing that in the original trade, the. assets exceeded the liabilities only by some fourteen hundred dollars, Edwards agrees to pay for the property a sum which exceeded the liabilities only by two hundred dollars. And this sum was to be paid to the debtor in cash, (less five hundred dollars to be paid Smith), with no security for other creditors or provision for their payment. When in connection with these facts, the intimate relations of the par — 205 — ties are considered, together with the admission by Edwards (deposed to by Bernard), that Stanley continued to draw money out of the business after the sale, we are of opinion the finding of the court below that the sale ivas fraudulent, should not be disturbed. Eliminating Edwards’ purchase, it is next insisted, that all-the property of the defendants did not exceed in value the amount exempt by law; and the principle is invoked that the sheriff can not be held liable for failure to levy upon exempt property. This question can not arise on this record for the reason that in respect to partnership property no exemption can be claimed as against partnership debts. It is expressly provided by statute (Code of 1886, §2513; Code of 1896, §2039), as follows: “No property, real or personal, held or owned by partners as partnership property, or purchased with partnership funds for partnership purposes, shall be the subject of homestead or other exemption as against copartners or partnership, creditors.” As against partnership creditors Nat. Stanley did not, by virtue of his purchase from Johnson, become the sole owner of the property! There was another partner —Hinkle. True, his interest is said to have Leen “nominal;” but this was so only as between the partners themselves. In respect to creditors, Hinkle’s liability and his joint ownership of the partnership assets were actual and not nominal. — Schlapback v. Long, 90 Ala. 525. Nor would the result be different if Hinkle had joined Johnson in the sale. Both were insolvent, and the transaction would have been fraudulent as to partnership creditors. — Aiken v. Steiner & Lobman, 98 Ala. 355. In respect to the property levied upon, the fact of the levy, as we have said, imposed, prima facie, a liability upon the sheriff to preserve and apply the property to the judgment when rendered. His discharge of the levy upon the mere execution of a claim bond, unaccompanied by affidavit, did not, as Ave have said, relieve him from this liability. Assuming that Edwards acquired no title by his purchase, the liability of the sheriff for the property levied on is beyond question. But the burden was upon the plaintiffs to show the extent of their damage by proof of the value of the prop — 206 — erty. There seems to have been no special effort to prove the value of the specific property — but one witness (Frank) testifying on the subject, and he in a very indefinite way. The plaintiffs sought to prove, rather, the value of all the property upon Avhich it Avas insisted the sheriff should have levied, as alleged in the second count, and Avhich, it Avas claimed, largely exceeded in amount and value that actually levied upon. If there was property subject to levy Avhich the officer neglected to seize, the burden was upon the plaintiffs to shoAV it. The presumption is, that SAVorn public officers have performed their duty, and this presumption obtains until disproved by him who asserts the contrary. Nearly all the evidence adduced by the plaintiffs on this issue, relates to the amount and value of the property on hand at the date of the sale from Johnson to Stanley. The highest estimate as of that date, is Johnson’s, Avho fixes the value of the property in the First aArenue place at twenty-three hundred dollars (stock $1,400 and fixtures $900), and in the Twenty-first street house at thirteen hundred dollars, (stock $700 and fixtures $600); a total of thirty-six hundred dollars. Frank testifies that he assisted in taking an inventory of the property, including fixtures in the First avenue store at the time of Johnson’s sale, and that its valúe was about twenty-three hundred dollars. He agrees with Johnson that the stock was worth $1,400, and the fixtures $900. The estimates of Johnson and Frank relate, it will be seen, to a date six days before the plaintiffs’ attachment was received by the sheriff, and it is contended for plaintiffs that having thus fixed the amount and value, the burden was upon the defendants to account for any diminution. If in a proceeeding against Stanley & Co., such an issue, was involved, there would be force in the proposition. In such case, the presumption of a continuance of the status, would operate against parties having special means, not open perhaps to others, of accounting for any loss or diminution. But the principle can have but limited, if any application to a suit like the present, where the duty of accounting attaches only as of the time Avhen the officer makes a levy, or should have made one. It was not the duty of the sheriff to account for any discrepancy between the amount of property in ex — 207 — istence on tlie 6th day of January, and the amount subject to levy when the process came into his hands. The issue was, not 'how much Stanley & Oo. had owned a. week prior to January 12th, but what property there was, subject to -levy, on the day the writ reached the officer. To shed light on this issue, it was doubtless competent to prove the recent ownership by defendants of more property than was levied on; but such evidence created no presumption against the officer which would shift the burden of proof. It was merely evidence of a fact, t’he probative force of which was a question for the jury, or in this case, for the judge, since a jury was waived, considered in connection with any other evidence tending to corroborate or weaken it. The evidence of but one witness (Frank) tended to show that all the property included in the sale from Johnson to Stanley, was in the First avenue house on the day of the levy. He made no examination, and evidently testified from general appearances. Opposed, is the evidence of Edwards, who says that when he bought (two days before the levy), the property in that store, aside from the furniture and fixtures, amounted to but $100 in value, and the evidence of the sheriff and his deputy. The sheriff made the levy in the First avenue store, and testified that the cash market value of all the property he could find there was $150 or $200. The deputy levied on the Twenty-first street property. It was of small value aside from the furniture and fixtures, both together being estimated, according to the evidence of the sheriff and his deputy, at between $275 and $300. On the whole evidence, we reach the conclusion that the return made by the sheriff on plaintiffs’ attachment, covers all the property found in both places of business, with the exception of the furniture and fixtures in each. We reach the further conclusion, that the plaintiffs were not damaged by the failure to levy on the furniture and fixtures in the First avenue house. The evidence shows without conflict that after Edwards’ purchase he executed a mortgage to secure a loan of $1,000 made on the faith of his possession and ownership of the property. The mortgagee was a purchaser in good faith, for value without notice of any infirmity in the title, and entitled to protection as such. — Thames v. — 208 — Rembert, 63 Ala. 561. It clearly' appears that the property mortgaged was not sufficient to secure the debt, so that the plaintiffs lost nothing by the failure to - levy upon it. We have held, that on such facts, the officer is not liable. — Abbott v. Gillespy, 75 Ala. 180; Gay v. Burgess, 59 Ala. 575; Sedgwick on Dam., § 634. As regards the furniture and fixtures in the Twenty-first street house, the sheriff should have levied, unle'ss at the time the plaintiffs’ attachment was returned, the property was already under seizure by virtue- of older attachments sufficient in amount to absorb the proceeds. But if the levies under the prior attachments had been discharged prior to the -return of plaintiffs’ attachment, then the mere fact of the existence of such prior attachments, or that they had at one time been levied, cannot excuse the failure to levy. — Bell v. King, 8 Port. 147. We are of opinion that the value of the property levied upon was less than that ascertained by the court below and for which judgment was rendered, and that this appears with such certainty as to take the case without the influence of Woodrow v. Hawving, 105 Ala. 240. Many exceptions were reserved by the appellants to the admission of evidence, but as they are not (with one exception) insisted upon in argument, we must decline to consider them. The single assignment argued relates to-the admission of evidence that Stanley & Co. had not, prior to the sale by Johnson, taken out a license as retailers. We can not perceive the relevancy of this evidence. Our statutes prohibiting the sales of liquor Avithout license have no application to such transactions. The statute regulating the practice and procedure in civil cases in the circuit court of Jefferson, authorizes trials without the -intervention of a jury, and when such trials are had, authorizes the conclusion and judgment of the court upon the evidence to be presented to this court for revision on appeal. And if in this respect this court finds there is error, authorizes a judgment of reversal or remandment to be rendered, or the rendition of such judgment as the trial court ought to have rendered. — Pamph. Acts, 1888-89, p. 800, § 7. Having reached the conclusion that the plaintiffs were not entitled to - recover so large a sum as was — 209 — adjudged, to avoid protracting the litigation, we have carefully examined the evidence to ascertain for what sum judgment should have been rendered, with a view to the rendition of the proper judgment here. Without discussing the evidence in detail, and after giving precedence to the attachments levied before the attachment of the appellees was levied, and after ascertaining the value of the property on which the levies were made, weave of opinion, the appellees were not entitled at the time of the trial to recover a sum exceeding four hundred dollars, and for this sum- with the interest thereon to this day, a judgment will be rendered against the appellants and their sureties on the supersedeas bond, together with the costs of suit in the court below. The appellees Avill pay tAvo-thirds of the costs of appeal, and the appellants one-third thereof. Reversed and rendered.