Strickland v. Gay

• Decision Date: 09 August 1894
• Citation: 104 Ala. 375,16 So. 77
• Parties: STRICKLAND ET AL. v. GAY ET AL.
• Court: Alabama Supreme Court

16 So. 77

104 Ala. 375

STRICKLAND ET AL. v. GAY ET AL.

Supreme Court of Alabama

August 9, 1894

Appeal from chancery court, Dale county; Jere N. Williams Chancellor.

Action by Gay, Hardie & Co. and others against D. D. Strickland and others to have a transfer of property declared a general assignment. An order was made appointing a receiver of property of D. D. Strickland, and defendants appeal. Reversed.

H. H Blackman and J. D. Baily, for appellants.

Borders & Carmichael, for appellees.

HEAD J.

The bill in this case is wholly without equity. It is filed by certain creditors of D. D. Strickland, open to all; and we gather from the brief that its purpose is to have a certain transfer of a stock of goods made by Strickland to his wife Eliza Strickland, declared a general assignment for the benefit of all his creditors, under section 1737 of the Code , as amended by the act of February 21, 1893 (Acts 1892-93, p. 1046). Prior to this amendatory act, an absolute sale by a debtor of all his property, either upon a present consideration or in payment of an existing debt, was not within the statute, and could not be declared a general assignment for the benefit of creditors. The amendment makes no change whatever in the existing law, except to bring within the statute absolute conveyances by a debtor of substantially all his property in payment of a prior debt, placing such conveyances upon a similar footing with conveyances for the security of debts, prior to the amendment. This bill shows that the conveyance in question was upon an express, present, cash consideration of $3,000. It is fatally bad, also, in that it shows, by affirmative averments, that the conveyance does not embrace substantially all the debtor's property subject to his debts; for, while the pleader alleges that the goods conveyed embraced substantially all the property owned by the grantor, yet the allegation is immediately followed by, and connected with, the express averment that said D. D. Strickland has book accounts, notes, and mortgages subject to the satisfaction of creditors' claims; and there is a prayer for a receiver to take charge of them, though they have no connection whatever with the conveyance to Mrs. Strickland. Taking the averments most strongly against the pleader, the repugnant allegation that the conveyance embraced substantially all the debtor's property will be rejected in considering the equity of the bill.

The special prayer of the bill is that a receiver be appointed to take possession of the...