Morris & Co. v. Barton

DOWDELL, O. J. This is a creditors’ bill to set aside an alleged fraudulent conveyance by the debtor. While there are assignments of error on the ruling of the chancellor on demurrer to the bill as originally filed, these assignments are not insisted on in argument, and are therefore, under the rule, not considered. The answers of the respondents to the bill as amended expressly deny every material averment of fraud. The question presented for our consideration, and the only one insisted on in argument, is purely one of fact. There is no difficulty in the law, as stated in the cases of Metcalf et al. v. Arnold, 132 Ala. 74, 32 South. 763, Beall & Coston v. Lehman, Durr Co., 110 Ala. 446, 18 South. 230, and Dickinson v. Bank of the Republic, 98 Ala. 546, 14 South. 550, but the difficulty with the complainants here rests in the failure of proof to support the averments of fraud. The law does not presume fraud, and when a charge of fraud is made as a fact,, and is denied, it must be established by the evidence before relief can be had. The evidence in the present case has been carefully considered and it would serve no purpose to here go over [100] it in detail, and we are of the opinion that it falls far short of sustaining the allegations of fraud made in the bill. It is shown without dispute in the evidence that the price paid by Barton & Allen for the stock of goods was fair, and not disproportionate, but a reasonable market value. And it is further shown without dispute that the proceeds of the sale of the stock was paid to the creditors. This rebuts any presumption of an intent on the part of the debtor to defraud his creditors in making the sale'. The fact that some of the creditors received none of the proceeds does not constitute fraud, if the proceeds .went to other creditors, as a debtor may prefer one creditor over another without being guilty, in so doing, of a fraud that would authorize a bill to set aside the conveyance as fraudulent and void against creditors. We concur in the conclusion of the chancellor that the evidence fails to support the bill and the decree appealed from must be here affirmed. Affirmed. All the Justices concur.