Elliott v. Kyle
| Decision Date | 11 April 1912 |
| Parties | ELLIOTT ET AL. v. KYLE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Gadsden; John H. Disque, Judge.
Bill by T. S. Kyle against James M. Elliott, Jr., and others. From a decree overruling a demurrer to the bill, defendants appeal. Affirmed.
Dortch Martin & Allen and Hood & Murphree, all of Gadsden, for appellants.
A. E Goodhue and W. J. Boykin, both of Gadsden, and George D Lancaster, of Chattanooga, Tenn., for appellee.
This appeal is prosecuted from a decree overruling appellants' demurrer to appellee's bill. To make a brief general statement of the bill, it avers that the defendant J. M Elliott, being indebted to complainant in the sum of $32,000, and to the First National Bank of Gadsden to the extent of $35,000 or $40,000, or other large sum, and to others, not named, in sums not named, he and his wife and codefendant, Nena Kyle Elliott, have conveyed to the Alabama City Land & Development Company, a corporation controlled by defendant Elliott and his wife, the latter of whom owns all, or "practically all," of the capital stock, all or substantially all his property, worth from $75,000 to $100,000, on a recited consideration of "one dollar and other valuable consideration," and has received from the grantee corporation its notes, "aggregating less than $20,000," which have been transferred to the defendant bank in payment of or as security for its said debt. Of the conveyance here shown, the bill avers that it gave a preference or priority of payment to the bank over other creditors of the grantor; that it was resorted to as a subterfuge or device, adopted for the purpose of placing the property beyond the reach of creditors, especially complainant, and with the intent to injure, delay, or defraud them of their just debts and demands. The special prayer of the bill is that the deed be declared a general assignment for the benefit of all creditors who may come into the suit on the invitation of the bill, to which is added the prayer for general relief.
Objections urged against the bill in this court are two: First, the bill is multifarious, in that its averments are inconsistent and repugnant, so that, should it be taken as confessed, the court would be at a loss whether to decree according to the one state of facts or the other; second, the averment of fraud is insufficient, as being nothing more than the mere conclusion of the pleader.
Entirely apart from the averment touching defendant Elliott's fraudulent intent to injure, delay, or defraud his creditors the equity of the bill is to be placed upon the fact that said defendant has conveyed all, or substantially all, his property to pay or secure an antecedent debt, or, in the effort to pay or secure such debt, has adopted a device different in form from those transactions or conveyances specifically mentioned in the statute, but which is nevertheless a disposition of his property which will, if undisturbed, accomplish the same result. The statute (Code, § 4295) provides that "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"--in a word, shall constitute a general assignment. The statute proceeds: "A general assignment within the meaning of this section shall include in addition to the conveyances now defined as such by law, every * * * 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 court has held, in...
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