Long v. Campbell

• Decision Date: 21 May 1902
• Citation: 32 So. 591,133 Ala. 353
• Parties: LONG v. CAMPBELL ET AL. [1]
• Court: Alabama Supreme Court

32 So. 591

133 Ala. 353

LONG v. CAMPBELL ET AL. ^[1]

Supreme Court of Alabama

May 21, 1902

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

Suit by John S. Long against W. P. Campbell and others. From a decree in favor of defendants, complainant appeals. Affirmed.

This bill was filed by the appellant, John S. Long, a simple-contract creditor, against William P. Campbell and William T. Price, his assignee, and sought to set aside, as fraudulent and void, a certain deed of general assignment made by said Campbell in August, 1890, to William T. Price as assignee, and to enforce a lien in behalf of the complainant on the property embraced in the deed of assignment. The assignee having died pending the suit, and his estate being insolvent, the case was revived against Samuel S. Broadus, the receiver of the said estate appointed by the United States court. After the death of the assignee an amended bill was filed, praying for the appointment of a receiver of the assigned estate, but no action was taken by the court; and afterwards S. S. Broadus was appointed receiver by the United States court in the case of the Louisville Banking Co. against W. P. Campbell, and an amendment to the original bill in this case was filed, making him a party.

The original and amended bills show that W. P. Campbell, who was engaged in the business of a private banker at Florence on the 30th August, 1890, made a deed of general assignment to William T. Price, as assignee. Price had been the confidential clerk and cashier of Campbell in his banking business for several years, and was wholly insolvent. The bill alleges that there was no change of possession of the assigned estate, but that W. P. Campbell continued in the sole possession, management, and control of the same as fully after the assignment as before. It alleges that he collected and disbursed the assets of the assigned estate as he saw proper, paying and compromising with certain creditors, and leaving others unpaid; that at the time of his assignment he was indebted to complainant in the sum of $5,000 by written guaranty. The facts briefly averred as to this indebtedness was as follows: On the 2d of April, 1890, the Foster Manufacturing Company, a corporation engaged in business at Florence, executed to complainant its two notes, for $5,000 each, payable, respectively, in 90 days and 4 months. These notes were given in renewal of notes of similar amount executed by the said Foster Manufacturing Company, payable to F. H. Foster, and by him indorsed to complainant. These notes were not paid on maturity, and complainant agreed to an extension of 90 days and 4 months, provided they were indorsed by all of the directors of the Foster Manufacturing Company, among whom was W. P. Campbell, who was then a private banker, enjoying high credit. Said Campbell was not only a director, but a large stockholder, of the corporation and, in addition to his own stock, had a large amount of stock of the company pledged with him for debts due by F. H Foster and the company. After some negotiation it was agreed that all the directors, except Campbell, should indorse the two notes; Campbell making a written agreement that he would pay the note maturing at 4 months if the company failed to do so. A copy of this written agreement is attached as an exhibit to the bill. Default was made in the payment of the note, and Campbell, having failed in business in the meanwhile, declined to pay as he had agreed. The bill alleges that the deed of assignment was fraudulent on its face, as well as made to hinder, delay, and defraud creditors; that by the express terms of the deed, Campbell excepted from its operation the homestead in which he then lived, which complainant alleges was of great value,--worth at least $10,000. The deed of assignment, which was attached as an exhibit to the bill, was as follows, down to the habendum clause: "This deed of conveyance, executed at Florence Alabama, on the 30 day of August, 1890, by and from William P. Campbell, party of the first part, to and with Wm. T. Price, party of the second part, witnesseth that whereas said party of the first part, in the transaction of the business as a banker at Florence, Alabama, under the firm name of W. P. Campbell & Co., has become involved to such an extent that he is not able to meet his obligations as they mature, and is anxious to provide for the payment of all amounts due by him to his creditors: Now, in consideration of the premises, and the payment of one dollar cash in hand by said party of the second part to said party of the first part, the receipt whereof is hereby acknowledged, said party of the first part does hereby give, grant, bargain, sell, and convey to said party of the second part all of the property, real, personal, and mixed, held, owned, or possessed by said party of the first part, whether in his individual name, or in his firm name of W. P. Campbell & Co., or jointly with others, including all notes, accounts, and evidences of debt, and every species of property whatever, except his homestead in which he now resides." The bill then averred that this reservation of property which was far in excess of the exemption allowed by law made the deed fraudulent and void as to creditors. The bill further averred that no inventories or schedules were ever filed by the assignee of Campbell; that Campbell collected and appropriated the assets to his own use, and that no dividend was ever declared; that at the time of the assignment the property was considered of great value,--about $200,000; and that no settlement of any kind was made by the assignee with the creditors, and the assignee died insolvent. It is alleged that Price was a mere dummy; Campbell exercising full control and dominion over the estate, and collecting and appropriating the assets to his own use, or the settlement of certain...