Myers v. Conway & Co.
| Decision Date | 28 April 1890 |
| Court | Alabama Supreme Court |
| Parties | MYERS v. CONWAY & CO. |
Appeal from city court of Birmingham; H. A. SHARPE, Judge.
On November 22, 1887, M. J. Mullane, who was doing business under the firm name of M. J. Mullane & Co., executed a deed of assignment to D. F. Myers as assignee for the benefit of all his creditors. This instrument was drawn in the usual form, with the following additional clause: "But the party of the first part, in making this assignment, reserves to himself any and all exemptions to which he is entitled under the laws of the state." On November 29, 1887, J M. Conway & Co., the plaintiffs, caused an attachment to be issued on the stock of goods belonging to M. J. Mullane, and which had been assigned to Myers. Thereupon the said Myers demanded of the sheriff possession of said stock of goods and, upon the sheriff's refusal to surrender the possession thereof, said Myers, as assignee, made his affidavit, filed a claim-bond, and interposed a claim to said goods as assignee. Upon the trial of the statutory claim suit, the court, after hearing all the evidence, gave the general affirmative charge in favor of the plaintiff in attachment, to which the claimant duly excepted. Judgment was rendered for the plaintiffs in attachment. The judgment entry, after condemning the said property to the satisfaction and payment of plaintiffs' claim, closes with the phrase "for which execution may issue." This judgment entry was made February 14, 1889. On October 8, 1889, the plaintiffs moved to amend the judgment entry nunc pro tunc by striking out the words, "for which execution may issue," and inserting therefor the words "if plaintiffs shall obtain judgment against defendant." The court granted the motion, and the judgment entry was so amended, against the objection and exception of the claimant. The claimant now prosecutes this appeal, and assigns the giving of the general charge for the plaintiffs, and the granting of the plaintiffs' motion to amend the judgment entry, as error.
A. A. Coleman and R. H. Pearson, for appellant.
Mountjoy & Tomlinson and Garrett & Underwood, for appellee.
The question is whether the assignment made to the appellant as trustee for the benefit of the creditors of the assignor passed the title of the goods before the levy of the attachment. The instrument is drawn in the usual form, with the addition of the following clause: "But the party of the first part, in making this assignment, reserves to himself any and all exemptions to which he is entitled under the laws of the state." It is shown that the merchandise went into the possession of the assignee before the levy of the appellees' attachment. Does the clause above stated render the contract executory, so as to prevent the vesting of an absolute title in the trustee? It may be admitted that the assignment is not rendered fraudulent by reason of the reservation of the assignor's lawful exemptions from the operation of the transfer. This exempt interest is one not liable to his debts, and no prejudice can arise to creditors by its retention, if effected in a mode otherwise unobjectionable. 1 Amer. & Eng. Cyclop. Law, 853, note 1, and cases cited; Shirley v. Teal, 67 Ala. 449; Alley v. Daniel, 75 Ala. 403. The point of difficulty does not lie in this feature of the case. It arises from the effect which is exerted upon the transfer of title by proof of the legal intention of the contracting parties.
We do not see any solid principle on which this case can be distinguished from that of Block v. Maas, 65 Ala 211. There the goods in controversy were transferred to a purchaser by bill of sale. The reservation made by the vendor was in these words: "Reserving and excepting the amount of...
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