Hicks v. Dadeville Oil Mill

• Citation: 177 Ala. 661,59 So. 57
• Parties: HICKS ET AL. v. DADEVILLE OIL MILL.
• Decision Date: 28 May 1912
• Court: Supreme Court of Alabama

59 So. 57

177 Ala. 661

HICKS ET AL. v. DADEVILLE OIL MILL.

Supreme Court of Alabama

May 28, 1912

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

Suit by the Dadeville Oil Mill against W. W. Hicks and others. From a decree overruling a demurrer to the bill, defendants appeal. Affirmed.

James W. Strother, of Dadeville, for appellants.

Bridges & Oliver, of Dadeville, for appellee.

DOWDELL C.J.

The present appeal is prosecuted from the decree of the chancellor overruling the respondents' demurrer to the bill. The purpose of the bill is to have certain mortgages therein described declared a general assignment for the benefit of all creditors.

The bill avers that the several mortgages, Exhibits D, E, and F were each given to secure a prior indebtedness of the mortgagors to the mortgagees, and the said several mortgages are averred to be the property of the respondent Hicks, and it is alleged that they convey substantially all of the property of the mortgagors. The bill further shows that the last of said three mortgages, Exhibit F, which was executed by the respondents Ada E. and F. P. Wallace to the respondent Hicks on the 3d day of January, 1911, was given to secure the prior indebtedness represented and contained in the other two mortgages, Exhibits D and E, as well, also, as other pre-existing debts owing by the respondents Wallace mortgagors, to the mortgagee, respondent Hicks, and it is shown that as a part of the consideration of the last mortgage, Exhibit F, the indebtedness of the first two mortgages is extended, and it is averred that these several transactions became and were one transaction, culminating in the mortgage of January 3, 1911, which conveyed substantially all of the debtor's property.

These averments are confessed on demurrer to the bill; and, such being the facts, the transaction became and operated a general assignment for the benefit of existing creditors. Danner & Co. v. Brewer & Co., 69 Ala. 191; Collier v. Wood, 85 Ala. 91, 4 So. 840; Anniston Carriage Works v. Ward, 101 Ala. 670, 14 So. 417; Merchants' & Farmers' Bank v. Paulk, 124 Ala. 591, 27 So. 468; Baxley v. Simmons, Durham &amp Co., 132 Ala. 117, 31 So. 76.

It may be that a part of the consideration for the mortgage of January 3, 1911, was for the supplies to be advanced by the mortgagee to the mortgagors; but the principal part of the consideration was a prior indebtedness from the...