Owens v. Hobbie

• Decision Date: 27 July 1887
• Citation: 82 Ala. 467,3 So. 145
• Parties: OWENS AND ANOTHER v. HOBBIE AND ANOTHER.
• Court: Alabama Supreme Court

3 So. 145

82 Ala. 467

OWENS AND ANOTHER v. HOBBIE AND ANOTHER.

Supreme Court of Alabama

July 27, 1887

Appeal from chancery court, Butler county; JOHN A. FOSTER, Judge.

The bill in this case was filed on the third of January, 1885, by Hobbie & Teague, partners doing business as merchants in the city of Montgomery, as creditors of the late firm of Hunt &amp Owens, against John A. Hunt, John A. Owens, Mrs. E. V. Owens and Mrs. S.E. Hunt, and sought to set aside, on allegations of fraud, a transfer and sale of the entire stock of goods belonging to Hunt & Owens, to said John A. Owens. The firm of Hunt & Owens was engaged in business as merchants in the town of Greenville, and was at first composed of John A. Hunt and Samuel Owens. Samuel Owens, who had married the daughter of John A. Hunt, died about the first of October, 1884, but the business was carried on afterwards without any change in the partnership name, and the stock of goods was sold and transferred to John A. Owens by a conveyance dated December 30, 1884. The consideration of the sale and conveyance, as therein recited, was an indebtedness of $3,800 from Hunt &amp Owens to said John A. Owens, which was evidenced by the promissory note of the firm, dated December 11, 1884, payable on the first of January, 1885, and secured by a mortgage on the stock of goods, of even date with the note. The note and mortgage were each signed by Hunt & Owens, S.E. Hunt, and E V. Owens; and the conveyance of the stock of goods, by S.E. Hunt, E. V Owens, and J. A. Hunt. Samuel Owens was the son of said John A. Owens, and Mrs. E. V Owens was his widow, and also the daughter of said John A. Hunt; and S.E. Hunt was the wife of said John A. Hunt. It was alleged on the part of the defendants that from about the first of April, 1884, the firm of Hunt & Owens was composed of Mrs. S.E. Hunt and Mrs. E. V. Owens, who had succeeded by purchase to the interests of their respective husbands. The complainants' debt amounted to about $700, and consisted of items for goods sold, as per accounts rendered, to the firm of Hunt & Owens, between the fourth of September and the first of December, 1884, and they insisted that if there was ever any change in the partners composing that firm they had no notice of it. On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainants, and his decree is now assigned as error.

R. E. Steiner and Stallings & Wilkinson, for appellants.

Gamble & Richardson, contra.

CLOPTON J.

The point of contention between the parties, the sole question argued by counsel, relates to the bona fides of a sale of the stock of merchandise of the firm of Hunt & Owens to appellant, which the appellees, being creditors, seek by the bill to have declared fraudulent. Whoever may have constituted the firm, partnership creditors have a right to pursue the partnership effects, if they have been fraudulently transferred by those claiming to be the members. The assumption that the case falls within the operation of Hodges v Coleman, 76 Ala. 103, rests on a misconception or a misapplication of the principles settled by that case. The sale was made December 30, 1884, in discharge and satisfaction of a note given to John A. Owens about three weeks previously for $3,800, payable January 1, 1885, and of a mortgage on the same merchandise to secure its payment, the consideration of which, as alleged, was an antecedent indebtedness of the firm and money presently loaned. This brings the case more appropriately within the influence of the rule established in Levy v. Williams, 79 Ala. 171, where we held that when a creditor purchases property from his debtor, a part of the consideration being an antecedent debt, and a part money paid, the rules applicable are the same as if the purchase had been wholly on a new consideration.

The character of the previous mortgage has an important and material bearing on the nature of the sale so speedily following. The mortgage conveys a stock of goods and merchandise, and contains a stipulation that the mortgagee is...