Skipper v. Reeves

• Decision Date: 30 January 1891
• Citation: 93 Ala. 332,8 So. 804
• Parties: SKIPPER ET AL. v. REEVES.
• Court: Alabama Supreme Court

8 So. 804

93 Ala. 332

SKIPPER ET AL. v. REEVES.

Supreme Court of Alabama

January 30, 1891

Appeal from circuit court, Henry county; J. M. CARMICHAEL, Judge.

Action of trespass by J. L. Reeves against A. B. Skipper and others for wrongful levy of attachment. Upon the trial the plaintiff offered evidence tending to show that he bought the stock of goods levied on from the firm of Sims & Reeves for $1,417.19 that being their cash price, less 20 per cent. discount; that the inventory was taken at night, and the money paid the next morning when the goods were delivered to him; and that this amount paid for the goods was all in "greenbacks." The defendants, who were creditors, offered evidence tending to show that the said firm of Sims & Reeves was indebted to them as well as other creditors; that said firm told McDowell, a salesman for one of the defendant firms, that they had some cotton in Columbia, and would pay their claim as soon as they sold said cotton; but that said cotton was sold, and the property disposed of, and the debts never paid. The defendants also offered evidence tending to prove the insolvency of said Sims & Reeves, and that the plaintiff, at the time of the alleged purchase, had knowledge of their insolvency. Some of the witnesses testified that after the purchase the plaintiff said that he knew his vendors were insolvent, and had to sell out; and others testified that before the sale the plaintiff told one witness, who represented a creditor of his vendors, that he had better take some cotton at a price above the market price for his debt, because they (Sims & Reeves) were embarrassed, and could not pull through the year, and again, by another witness, that plaintiff told him that said firm was embarrassed, and some of these days "you are going to hear the biggest smash you ever heard." There was also evidence that one of the vendors of plaintiff was his brother, and that since the sale he has been clerking for the plaintiff. In rebuttal, plaintiff made a sweeping denial of this testimony, and disclaimed all knowledge of his vendors' embarrassment and insolvency. Verdict and judgment for plaintiff, and defendants appeal.

S H. Dent, Jr., and Watts & Son, for appellants.

J G. Cowan and J. W. Foster, for appellee.

CLAPTON J.

Appellee brings the action of trespass for the alleged wrongful seizure of a stock of goods under attachments against Sims &amp Reeves, which he purchased from them for cash. The defendants are the sheriff, the attaching creditors, and the sureties on the bond of indemnity given to the sheriff, who seek to defeat the action on the ground of fraud in the sale. The rules as to the burden of proof in such cases may be epitomized as follows: Fraud not being presumed, when the transaction is lawful and honest on its face, the onus is primarily on defendants to show a fraudulent purpose on the part of the debtors making the sale, and that plaintiff had notice thereof, or information of facts and circumstances sufficient to charge him with notice. Stix v. Keith, 85 Ala. 465. ^[1] Defendants having shown the existence of the debts of the attaching creditors antedating the sale, the necessity of proving a valuable consideration devolved on plaintiff as the purchaser. Lipscomb v. McClellan, 72 Ala. 151. To sustain a sale against the existing creditors of the vendor, not only must the purchaser pay a fair and reasonable price, but the sale must be also bona fide. Proof of an adequate and valuable consideration raises the presumption that the sale is fair and honest, which may be rebutted or overcome, and operates to shift the burden on the attaching creditors of showing mala fides in making the sale,-of proving a fraudulent intent on the part of the seller, and notice thereof to the purchaser, or of facts putting him on inquiry, which, if followed up in good faith, would lead to a knowledge of such intent. Hodges v. Coleman, 76 Ala. 103; Spira v. Hornthall, 77 Ala. 137. The first charge asked by plaintiff substantially asserts the foregoing propositions. Not controverting these rules, the objection urged by appellants to the charges, especially the first, is, that, to enable defendants to rebut the presumption arising from proof of a valuable consideration, they exact evidence of a character too narrow and onerous. The first charge is in this language: "That if the evidence reasonably satisfies them [the jury] that plaintiff bought the goods, paying a fair and reasonable price for them, they must find for the plaintiff, unless the evidence reasonably satisfies them that plaintiff's vendors made said sale with the intent or purpose to delay, hinder, or defraud their creditors; and that when plaintiff made his purchase he...