Pollak v. Searcy

• Decision Date: 02 May 1888
• Citation: 4 So. 137,84 Ala. 259
• Parties: POLLAK ET AL. v. SEARCY.
• Court: Alabama Supreme Court

4 So. 137

84 Ala. 259

POLLAK ET AL. v. SEARCY.

Supreme Court of Alabama

May 2, 1888

Appeal from circuit court, Lowndes county; JOHN MOORE, Judge.

Action by George W. Searcy against I. Pollak and others for illegally levying an attachment on property claimed by plaintiff. Judgment for plaintiff, and defendants appeal.

Rice & Wiley, for appellants.

Watts & Son and J. C. Richardson, for appellee.

STONE C.J.

Blake &amp Searcy conveyed their merchandise, by sale absolute in form, to George W. Searcy, in payment of an alleged debt to him. The real issue in this case is whether or not the alleged debt from Blake & Searcy to George W. Searcy, as claimed, was bona fide, and whether or not the sale was absolute, reserving no interest or benefit to the sellers. The amount claimed by George W. Searcy as due to him from Blake & Searcy was $2,400, and there is no proof that the merchandise claimed to have been conveyed was worth more than that sum. The rules for determining whether or not such sale is valid against an existing creditor have been so often declared by this court that we consider it unnecessary to repeat them. Crawford v. Kirksey, 55 Ala. 282; Sims v. Gaines, 64 Ala. 392; Lehman v. Kelly, 68 Ala. 192; Seaman v. Nolen, Id. 463; Bank v. Brewer, 71 Ala. 574; Hodges v. Coleman, 76 Ala. 103; Proskauer v. Bank, 77 Ala. 257; Shealy v. Edwards, 78 Ala. 176; Levy v. Williams, 79 Ala. 171; Pritchett v. Pollock, 82 Ala. 169, 2 South. Rep. 735. Pollak & Co. were creditors of Blake & Searcy before and at the time the latter made the conveyance to George W. Searcy, and, soon after the conveyance was made, they indemnified the sheriff, and attached the goods as the property of Blake & Searcy. The goods had not been removed, but were still in the store-house in which Blake & Searcy had done business. The claim on which the attachment was sued out was a fraction over $500, while the goods in the store were worth considerably more than that sum. The levy was made late in the afternoon. The sheriff took possession of the store, and proceeded to select and inventory the goods, so as to set apart and take possession of such portion of them as he deemed sufficient to satisfy Pollak's claim. Defendants, Pollak et al., offered to prove, in mitigation of damages, that, on the next day, after completing the selection and inventory, the residue of the goods were tendered back, and Searcy refused to accept them. This testimony was ruled out on the motion of the plaintiff.

The right to make this defense must depend on the question whether or not the sale by Blake & Searcy to George W. Searcy was bona fide. If that sale was valid, then the levy of the attachment was a naked trespass, and the tender back, without acceptance, was no defense whatever. Clark v. Hallock, 16 Wend. 607; Hanmer v. Wilsey, 17 Wend. 91. In levying on merchandise, a part of a stock of goods, and, even in perfecting a levy of an entire stock, the officer must have some time to ascertain what goods are required, or what goods there are, and to make an inventory of them. He must obtain control, to make a levy. Murfee, Sher. § 523. And no matter in whose house they may be, if not in a dwelling, he may, after demand and refusal, forcibly enter and levy if the goods are subject to the process in his hands; and he may remain in such house for a reasonably sufficient time to perfect the levy, and remove the goods. Murfree, Sher. § 522; Perry v. Carr, 42 Vt. 50; Rowley v. Rice, 11 Metc. 337; Platt v. Brown, 16 Pick. 553; Malcom v. Spoor, 12 Metc. 279; Messner v. Lewis, 20 Tex. 221; Drake, Attachm. § 246; Green v. Burke, 23 Wend. 490. We find no pleas in this record, and must therefore presume that the case was tried on the general issue. May v. Sharp, 49 Ala. 140. Under our statutory system of pleading, the general issue merely casts on the plaintiff the burden of proving the allegations of the complaint. All matters of defense which go beyond this must be specially pleaded. Petty v. Dill, 53 Ala. 641. Everything relied on in the defense of the present suit required a special plea. If the conveyance from Blake & Searcy to George W. Searcy was fraudulent, then the attachment was a full defense to that part of the action which complains that the defendant broke and entered the store, and carried away the goods, to the extent, and only to the extent, that the goods seized and removed did not exceed in value what would probably be required to make Pollak's debt secure. As to the balance of the goods not required for Pollak's claim, if the justification under process is made good, and if there was no undue delay in perfecting the levy and offering back the surplus, and in vacating the premises, this, under a proper plea, is an answer to what might otherwise be adjudged an excessive levy.

The testimony of the tender back, if there was a proper plea raising the question, should have been received when offered, subject to be charged on as the the jury might find the sale to George W. Searcy to be valid or fraudulent.

Two charges were given at the instance of the plaintiff, but each asserts the same proposition. They were separately excepted to. The language of the instruction is: "That, if the facts relating to the sale of the property in question admit of two constructions, the one rendering it fraudulent, and the other honest and valid, the latter must be accepted and acted upon." This instruction hypothesises nothing as to the relative strength of testimony or belief supporting the opposing alternate constructions. These may be very weak, and still not so weak or worthless as to fall within the asserted rule. "Admit," in the sense here employed, is the synonym of "tolerate." A paraphrase of the sentence would be that, unless the testimony tending to prove the fraud is so clear as to admit of no other conclusion, then the jury must find the conveyance valid. The rule declared is too exacting. This precise question has been many times before this...