McCreery v. Berney Nat. Bank

• Decision Date: 24 June 1897
• Citation: 116 Ala. 224,22 So. 577
• Parties: MCCREERY ET AL. v. BERNEY NAT. BANK ET AL.
• Court: Alabama Supreme Court

22 So. 577

116 Ala. 224

MCCREERY ET AL. v. BERNEY NAT. BANK ET AL.

Supreme Court of Alabama

June 24, 1897

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Bill by James McCreery & Co. against the Berney National Bank and B Somers & Co. to set aside a sale of attached property. From a decree in favor of defendants, complainants appeal. Affirmed.

The bill averred that on December 4, 1893, the Berney National Bank sued out an attachment in the city court of Birmingham against respondent B. Somers & Co., and had it levied on one stock of dry goods in store No. 2019 First avenue, in said city, worth $15,000, one complete set of store fixtures consisting of counters, shelving, iron safe, desk, and show cases in said store, worth $2,000, and a leasehold interest in said store, worth $1,500; that on the 17th of December 1893, said Berney National Bank made a motion in said city court of Birmingham for the sale of said property as perishable, and on December 18, 1893, said motion was granted. On December 30, 1893, said property was sold by the sheriff of Jefferson county, under said order, and bought in by said Berney Bank for the sum of $5,500, and possession of the same was taken by said Berney National Bank. The bill further avers that said sale was made before the Berney National Bank had obtained judgment in its said attachment suit, and the court had no jurisdiction to grant such order and the sale was absolutely void, and conveyed no title to the same. It further alleges that the fixtures levied upon and bought in by it had been disposed of by said bank, and the stock of goods had been sold out at retail by said bank, and the proceeds used and appropriated by the bank; that the sale of said stock of goods and fixtures occurred before it was possible for complainants to get judgment and levy upon the same at law. There is a further averment that, at the time of said levy and sale by said Berney National Bank, B. Somers & Co. were insolvent, and indebted to a large number of foreign creditors, among whom were complainants; that the purpose of the Berney National Bank in selling said goods and other property before judgment was to buy them at a great sacrifice before other creditors could have an opportunity to bid at the sale; that the property was worth more than three times the amount that it brought at said sale; and that the sale was for the purpose of hindering, delaying, and defrauding the creditors of B. Somers & Co. There is a further allegation that the leasehold interest had expired, and that complainants could not have obtained judgment before the expiration of said lease. There is prayer that the sale to said Berney National Bank be declared fraudulent and void as to the debts of complainants, and that the Berney National Bank be held as trustee for the value of said property to the extent of complainants' debts. To this bill the Berney National Bank demurred, upon the following grounds: "(1) The allegation that the city court had no jurisdiction to order the sale of the property of B. Somers & Co., described in the bill as perishable, and the averment that said sale was therefore void, constitute no ground of equitable interference, and no facts sufficient to avoid said sale on the ground of fraud are sufficiently averred. (2) It appears from the averments of said bill that the property therein described was sold under order of court, and although it is alleged that said property brought less than it was worth, and that it was sold at the time for the purpose of buying it at a sacrifice, yet these facts are not sufficient to show fraud in a sale at public outcry to the highest bidder under order of court, nor are there any facts averred that show any fraud in the purchase of said property by this defendant. (3) There are not facts showing fraud in the purchase by this defendant of the property described in the bill sufficiently averred. (4) The facts averred in complainant's bill only show a void judicial sale, for which complainants have an adequate remedy at law, and no facts are averred by complainants showing any fraud in said sale. (5) Defendant further demurs to said bill because no facts are averred showing that the sale of said stock of goods was not a valid judicial sale made by a court having jurisdiction to order the same, and no facts are averred showing fraud in said sale, and because, it being averred that the sale of the leasehold and fixtures was absolutely void, complainants have an adequate remedy at law. (6) No want of jurisdiction being shown in the city court of Birmingham to order the sale of said stock of goods, said sale is not subject to collateral attack for inadequacy of price or other cause." Upon the submission of the cause upon these demurrers, the chancellor rendered a decree sustaining them. From this decree the complainants appeal, and assign the rendition thereof as error.

Mountjoy & Tomlinson, for appellants.

Walker Percey, for appellees.

BRICKELL C.J.

This is an appeal from a decree sustaining a demurrer to a bill of complaint filed by appellants, creditors of B. Somers & Co. which seeks to have declared void a sale of personal property, which had been seized as the property of said B. Somers & Co. under a writ of attachment sued out by the Berney National Bank, and sold under an order of the court, in advance of judgment, as "perishable property," and purchased at the sale by the Berney National Bank, and to have the latter declared a trustee of said property, or the proceeds thereof,and compelled to account as such. The property consisted of a stock of dry goods, of the alleged value of $15,000, a complete set of store fixtures, valued at $2,000, and a leasehold interest in the storeroom, valued at $1,500, all of which were bid in and purchased by the bank for the sum of $5,500. A demurrer to a bill confesses only matters of fact which are well pleaded, and not conclusions or inferences of law or fact. When, therefore, fraud is averred in general terms, and no facts are alleged constituting the fraud, the court cannot consider the averment in passing on the demurrer, for such averments are mere conclusions of the pleader. Flewellen v. Crane, 58 Ala. 629; Loucheim v. Bank, 98 Ala. 524, 13 So. 374; Ft. Payne Furnace Co. v. Ft. Payne Coal & Iron Co., 96 Ala. 476, 11 So. 439; McDonald v. Pearson (Ala.) 21 So. 534. Such are the allegations that the purpose of appellee in obtaining the order for the sale of said property was "to buy it at a great sacrifice before other creditors could have an opportunity to bid at the sale," and that "the sale was for the purpose of hindering,...