Dadeville Oil Mill v. Hicks

• Decision Date: 18 December 1913
• Citation: 63 So. 970,184 Ala. 367
• Parties: DADEVILLE OIL MILL v. HICKS et al.
• Court: Alabama Supreme Court

63 So. 970

184 Ala. 367

DADEVILLE OIL MILL v. HICKS et al.

Supreme Court of Alabama

December 18, 1913

Appeal from Chancery Court, Tallapoosa County; W.W. Whiteside Chancellor.

Suit by the Dadeville Oil Mill against W.W. Hicks and others. Bill dismissed, and complainant appeals. Affirmed.

Bridges & Oliver, of Dadeville, for appellant.

James W. Strother, of Dadeville, for appellees.

MAYFIELD J.

Appellant filed its bill to have certain mortgages, executed by F.P Wallace and wife to W.W. Hicks, doing business under the firm name of W.W. Hicks & Co., declared a general assignment; and to enforce the assignment so declared among the creditors of said mortgagors, one or chief of whom was complainant. The suit was submitted for final decree on pleading and proof. The chancellor denied all relief and dismissed the bill upon the ground that the complainant failed in its proof to show that the several mortgages were in effect, or could, by a court of equity, be declared to be a general assignment.

The contention of the appellant was that the several mortgages--one made in 1908, and the last in 1911--should be considered together and as constituting one transaction, and that, being so considered, they constituted a general assignment, and the court should so decree. On this phase of the case the chancellor thus decreed: "The material allegations of the bill are not proven. The mortgage made by Ada E. and F.P. Wallace to respondent W.W. Hicks on 29th February, 1908, cannot be declared any part of a general assignment at the suit of complainant, because complainant's debts against said mortgagors did not exist at the time of the execution of said mortgage. And the mortgage made by said parties to the bank cannot be declared a general assignment because it does not appear to include all, or substantially all, of the property of said mortgagors subject to execution. And the mortgage executed by said parties to respondent W.W. Hicks, on 3d January, 1911, does not appear to be given in payment of, or as security to, any prior existing debt, except possibly in so far as it purports to be an additional security for the debts secured by the firstmentioned mortgage. These several mortgages made in 1908, 1910, and 1911 cannot, in the opinion of the court, be construed together so as to constitute them a general assignment, in the absence of proof that they were all in the contemplation of the parties to them at the time of the execution of the first of said mortgages. The payment set up in defense of this suit has not, in the opinion of the court been established. The suit will be dismissed, without prejudice." After a careful examination of the record, aided by the able brief of counsel for appellant with its direct references to the pages of the transcript in which certain evidence is to be found--which evidence, in the opinion of counsel, proves the averments of the bill--we are not able to agree with counsel in their contention, but agree with the chancellor in his finding, as shown by parts of his opinion above set forth, as to what the evidence establishes and what it fails to establish.

The law in this state, on the subject in question, is to be found in the provisions of section 4295 of the Code of 1907, which section reads as follows: "Every general assignment made by a debtor, or a conveyance by a debtor, of substantially all of his property subject to execution in payment of a prior debt, by which a preference or priority of payment is given to one or more creditors, over the remaining creditors of the grantor, shall be and inure to the benefit of all the creditors of the grantor equally; but this section shall not apply to or embrace mortgages or pledges or pawns given to secure a debt contracted contemporaneously with the execution of the mortgage or pledge or pawn, and for the security of which the mortgage or pledge or pawn was given. A general assignment within the meaning of this section shall include in addition to the conveyances now defined as such by law, every judgment confessed, attachment procured by a debtor, or other disposition of property by which a debtor conveys all or substantially all of his property subject to execution, in payment of, or as the security for, a prior debt, or charges such property with the payment of such debt." This statute does not make a partial assignment to one creditor inure to the benefit of all creditors. Inman v. Schloss, 122 Ala. 461, 25 So. 739. The statute is not intended to declare conveyances fraudulent or void, but simply to blot out intended preferences or priorities; effect is to be given to the instrument or to the transaction that would be given to it if the statute were incorporated in the instrument or transaction that would be given to it if the statute were incorporated in the instrument or transaction as a part of it. Anniston Co. v. Ward, 108 Ala. 85, 18 So. 937. The grantee, assignee, mortgagee, trustee, etc., of a general assignment becomes a trustee for all the creditors of the debtor. Anniston Co. v. Ward...