Chipman v. Glennon

• Decision Date: 08 June 1893
• Citation: 13 So. 822,98 Ala. 263
• Parties: CHIPMAN ET AL. v. GLENNON ET AL.
• Court: Alabama Supreme Court

13 So. 822

98 Ala. 263

CHIPMAN ET AL. v. GLENNON ET AL.

Supreme Court of Alabama

June 8, 1893

Appeal from circuit court, Mobile county; William E. Clarke, Judge.

Action by Chipman, Calley & Co. against J. K. Glennon and others, as sureties on the official bond of Dick Roper, sheriff of Mobile, to recover damages for an alleged wrongful levy of an attachment. The attachment was sued out against A. Curtis and was levied on property which had been conveyed by Curtis to plaintiffs Judgment for defendants, and plaintiffs appeal. Affirmed.

M. D Wickersham and R. P. Deshon, for appellants.

Gregory L. & H. T. Smith and W. E. Richardson, for appellees.

COLEMAN J.

The action was for damages for the wrongful levy by the sheriff of an attachment upon the goods of appellants, (plaintiffs.) There is no material conflict in the evidence; at least, none that can exert any influence upon the question to be considered. The proof shows that on the 30th of November 1887, Adam Curtis, who for many years had been engaged in the mercantile business in Mobile, of selling boots and shoes, by bill of sale, sold and conveyed his entire stock of goods accounts, fixtures, and lease to Chipman Calley & Co. The consideration for the sale was the payment of a past-due indebtedness to plaintiffs for $2,405.83, and the assumption by the purchaser of other past-due indebtedness to other creditors of Curtis, amounting to $3,289.20, making a total past-due indebtedness of $5,695.03 as the consideration. The debt due plaintiffs, and those assumed by them, were shown to be genuine bona fide debts. The bill of sale of the goods, etc., was introduced in evidence, which contains a complete inventory of everything sold, and the valuation of the goods at invoice prices. At invoice prices, the goods foot up $8,769.63 The bill of sale places the total value at $5,995.43. There was no proof offered of the actual value of the goods sold, except the mere recitation in the bill of sale, as stated above. It was admitted that the claim upon which the attachment was sued out, and levied by the sheriff, was a just debt against Adam Curtis, and existed prior to, and at the time of, the execution of the bill of sale to plaintiffs. There is no other proof in the record that Adam Curtis was in failing circumstances at the time of the sale, or that plaintiffs had any knowledge of his condition, except that to be inferred from the facts, as stated in this opinion. The court gave the general charge for the defendants. The giving of this charge is assigned as error, and is the question presented for review.

The recital in the bill of sale that the goods were valued at $5,995.43 was not evidence of their value, against the defendants. The rule is thus declared: "When, between the grantee and an existing creditor, a controversy arises as to the validity of the conveyance, the recital of a consideration is the mere declaration or admission of the grantor, and is not evidence against the creditor." Hubbard v. Allen, 59 Ala. 296. The same rule applies as to any mere recital of the value of goods or property sold. As against the defendants in this case, there is no competent evidence to show that an adequate consideration-a fair equivalent-was paid for the goods. The real value of the goods may have been largely in excess of the price paid, or less. There is proof that plaintiffs paid a valuable consideration, consisting of the debt due plaintiffs, and the debts due other creditors, assumed and paid by them. There are many decisions which declare, as a general proposition of law, in a contest between a creditor of the grantor and his grantee, attacking the validity of the grant, if it be shown that the debt of the attacking creditor existed prior to the grant, the burden is upon the grantee to show that he paid both a valuable and adequate consideration. Page v. Francis, (Ala.) 11 South. Rep. 737; Moore v. Penn, (Ala.) 10 South. Rep. 343; Skipper v. Reeves, 93 Ala. 334, 8 South. Rep. 804; Robinson v. Moseley, 93 Ala. 70, 9 South. Rep. 372; Caldwell v. Pollak, 91 Ala. 358, 8 South. Rep. 546; Bank v. McDonnell, 89 Ala. 445, 8 South. Rep. 137....