Cross v. Berry

• Decision Date: 17 December 1901
• Citation: 31 So. 36,132 Ala. 92
• Parties: CROSS ET AL. v. BERRY ET AL.
• Court: Alabama Supreme Court

31 So. 36

132 Ala. 92

CROSS ET AL. v. BERRY ET AL.

Supreme Court of Alabama

December 17, 1901

Appeal from chancery court, Morgan county; Wm. H. Simpson Chancellor.

Suit by Berry, Demoville & Co. against T. M. Cross and others. From a decree in favor of the complainants, the defendants appeal. Affirmed.

S. T Went and Wm. L. Martin, for appellants.

E. W Godbey, for appellees.

DOWDELL J.

The present bill was filed by Berry, Demoville & Co., who were creditors of the appellant Cross, and seeks to have set aside and annulled a mortgage executed by Cross to the appellant Young as being fraudulent and void as to creditors. Troup Brock, and Ryan were also made defendants in the bill, for purposes therein averred, which we need not mention here, since they were not made parties to this appeal, the appeal having been taken alone by Cross and Young. The appeal, however, should have been taken in the name of all the defendants, and a summons and severance had in this court as to those not joining in the appeal; but, as no question is raised upon the irregularity in taking the appeal, we will take no further notice of it. The appeal is taken from a final decree rendered on a submission of the cause upon the pleadings and proof. The chancellor, upon his findings on the facts in the case, decreed the mortgage made by appellant Cross to appellant Young fraudulent and void as to complainants, and this decree is here assigned as error.

The undisputed evidence in the case shows that the mortgage in question was given to secure the payment of six notes, each respectively, in the sum of $100, and all due and payable one year after date; that, several days after the execution of these notes, the mortgage in question, which was given to secure the same, was executed; that, at the time of the execution of the notes, the giving of the mortgage was not contemplated, but was an afterthought and consideration. The property contained in the mortgage consisted of a stock of drugs and fixtures, and being the stock in trade of Cross, the mortgagor, who was then conducting and carrying on a drug business in the city of Decatur. By the terms of the mortgage the mortgagor was permitted to remain in possession of the property mortgaged for the purpose of carrying on his drug business in the usual and ordinary way of selling and disposing of the stock of drugs and replenishing the same as his business might require, without...