H.B. Claflin Co. v. Muscogee Mfg. Co.

• Decision Date: 16 May 1900
• Citation: 127 Ala. 376,30 So. 555
• Parties: H. B. CLAFLIN CO. ET AL. v. MUSCOGEE MFG. CO. ET AL. [1]
• Court: Alabama Supreme Court

30 So. 555

127 Ala. 376

H. B. CLAFLIN CO. ET AL. v. MUSCOGEE MFG. CO. ET AL. ^[1]

Supreme Court of Alabama

May 16, 1900

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Bill by the Muscogee Manufacturing Company and others against the H B. Claflin Company and others. Decree for plaintiffs, and defendants appeal. Reversed.

Francis G. Coffey, Roquemore & Harmon, and Thos. G. & Chas. P. Jones for appellants.

Wm. J Sanford & Son, John M. Chilton, and Lomax, Crum & Weil, for appellees.

McCLELLAN C.J.

On January 8, 1894, the H. B. Claflin Company, Josiah Morris & Co., and Cane, McCaffrey & Co., creditors of the Pollak Company, a mercantile corporation, sued out attachments against said Pollak Company, and the writs were severally levied on the stock in trade of said company. Immediately after these writs were levied, a resolution was adopted by the directors of the Pollak Company directing Ignatius Pollak, its president, to execute a general assignment of all its property and assets to Pelzer and Roman for the benefit of its creditors, subject expressly, however, to the liens of said attachments, and thereupon immediately a deed of assignment was accordingly executed, and the trust thereby created was at once accepted by the assignees. The Muscogee Manufacturing Company, for itself and other creditors of the Pollak Company who should come in and make themselves parties, etc., soon afterwards filed this bill against said company, the assignees in the deed of assignment, said attaching creditors, B. J. Baldwin, as executor of Josiah Morris, deceased, and the sheriff, setting up that said attachments were collusive, fraudulent, and void; that they and the deed to the assignees were parts of one and the same transaction, together constituting a general assignment for creditors, etc.; and praying that said writs of attachment be "treated and declared as part of said general assignment, and constituting therewith one conveyance of general assignment for the equal benefit of all the creditors of said Pollak Company, and that the preferences thereby attempted to be created be declared null and void," and all the property of said Pollak Company, freed from said alleged attachment liens, be administered for the equal benefit of all its creditors, etc. The averments of the bill as to the collusive character of the attachments, as to the writs being sued out and suffered or procured as part of the same transaction in which the general assignment was executed, etc., are as follows: "Orator further avers on information and belief: That at the time of making said general assignment the said Pollak Company owed a large amount of debts to various creditors, amounting in the aggregate to, to wit, over two hundred thousand dollars, among which creditors were Josiah Morris & Co. in the sum of over fifty thousand dollars, the H. B. Claflin Company in the sum of exceeding thirty thousand dollars, and Cane, McCaffrey & Co. in the sum of more than twenty-five hundred dollars. That while the execution of said deed of assignment was in contemplation by said Pollak Company, and so known to be by said Josiah Morris & Co., H. B. Claflin Company, and Cane, McCaffrey & Co., said creditors so named, and said Pollak Company entered into an agreement and understanding that a priority or preference should be given by said Pollak Company to said named creditors over the other creditors of said Pollak Company, by the terms of which the said deed of assignment, although prepared before said attachments were sued out, should be held back from delivery to the trustees and from record until after said attachments should be sued out and levied. And orator avers that pursuant to said agreement, understanding, or arrangement the said attachments were sued out by said creditors respectively in the city court of Montgomery shortly after 7 o'clock a. m. on January 8, 1894, and were received by the sheriff, and indorsed as received by him in the following words: 'Cane, McCaffrey & Co.'s attachment at 8:15 o'clock on said day, Josiah Morris & Co.'s attachment at 8:16 o'clock on said day, and H. B. Claflin Co.'s attachment at 8.17 o'clock on said day; and all being so received in the morning of said day.' And orator further avers that said attachments were levied by the sheriff in the morning of said day on all the stock of goods, wares, and merchandise in the storehouses of the said Pollak Company in the city of Montgomery, Alabama, but at what precise hour they were so levied orator is unable to state. Orator further alleges on information and belief that said Pollak Company knew before said attachments were sued out that the same were going to be sued out, and the said attaching creditors knew before said attachments were sued out that said assignment was going to be made, and by mutual agreement, understanding, or arrangement between all of the parties the said attachments were issued, received by the sheriff, and levied by him, and the said assignment executed in the order herein averred; and that said attachments were so sued out and levied and said assignment so executed thereafter with the intent on the part of all of said parties to have and make said attachments and assignment operate as a preferential transfer of said property so levied on in favor of said attaching creditors over other creditors of said Pollak Company; and to further effectuate said purpose it was provided in said deed of assignment that the same should be subject to said writs of attachment; and orator on advice and belief avers that said attachments and deed of assignment together constitute one general assignment for the benefit of all the creditors of said Pollak Company equally. Orator avers that in further aid of the preference sought to be given said attaching creditors it is provided in said deed of assignment that said assignment is also subject to the landlord's lien for the rent of said storehouses, which rent, orator avers, amounts to about nineteen thousand dollars." The answers of the attaching creditors of Pollak Company and the answer of that company each and all directly and unequivocally deny any and all collusion, agreement, understanding, and arrangement between said creditors and said Pollak Company, and between each and every of them and the Pollak Company; and aver that their several claims upon which the attachments were issued were just debts against said company in the amounts for which the writs were severally sued out, and that the ground set up in the affidavits, respectively, for the issuance of the attachments in fact existed; and the bill in no way questions the existence or bona fides of said debts, nor the existence of the ground upon which the attachments were sued out.

Upon the foregoing statement of the case as presented by the bill and answers, it is obvious that the main issue in the cause is collusion vel non between said creditors and the Pollak Company in the suing out of said attachments. The chancellor found that issue in favor of the complainant as to Josiah Morris & Co. and the H. B. Claflin Company and against the complainant as to Cane, McCaffrey & Co., and decreed relief accordingly. In reviewing this finding no presumption in favor of its correctness can be indulged, the statute providing that "in deciding appeals from the chancery court no weight shall be given to the decision of the chancellor upon the facts, but the supreme court shall weigh the evidence and give judgment as they deem best" (Code § 3826); and as the evidence before the chancellor was the same and in the same form-depositions and writings-as that before us, there is no room for the application of the doctrine declared in Woodrow v. Hawving, 105 Ala. 240, 16 So. 720. On the issue thus made and thus determined by the chancellor, and now presented for our determination anew, the burden of proof throughout was upon the complainant. The rule that on a bill filed to set aside a conveyance of property made by an insolvent and failing debtor in payment of an alleged antecedent debt the onus is on the respondent grantee to specifically allege and satisfactorily prove an adequate, bona fide consideration, and how, when, and in what it was paid, etc., has no application here. In the case stated the burden of alleging and proving the conveyance by such a debtor is always upon the complainant, and it is only when the fact of conveyance has been proved or admitted that the onus shifts to respondent to show the consideration, its payment, etc. If property of an insolvent debtor could be efficaciously transferred by him to a creditor in payment of an antecedent debt by means of a collusive attachment, and the fact of collusion in the issuance of such attachment were admitted in a given case, then and thereupon it would be for the attaching creditor to prove the bona fides and adequacy of his debt, and its satisfaction through the attachment; but, until the collusive and covinous character of the attachment should be proved or admitted, the respondent would rest under no burden whatever. And if, in such case, it were admitted-as it is here-that the asserted debt was just and adequate, and that there were grounds for the issuance of the attachments, there would be no occasion in any aspect possible of assumption by the case for the creditor to offer any evidence. The whole case for the complainant would fall of its own weight to the ground. In the case supposed the collusiveness of the attachment would have to be proved before the respondent would be put to any showing whatever; as in the case of an alleged fraudulent conveyance the fact of the...