Truss v. Davidson

• Decision Date: 09 May 1890
• Citation: 90 Ala. 359,7 So. 812
• Parties: TRUSS v. DAVIDSON.
• Court: Alabama Supreme Court

7 So. 812

90 Ala. 359

TRUSS v. DAVIDSON.

Supreme Court of Alabama

May 9, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action was brought by the appellee against the appellant, and sought to recover a stock of goods. The plaintiff claimed the same as assignee of one A. T. Palmer, while the defendant had possession of the said stock of goods, as sheriff, under several writs of attachment. The circumstances under which the assignment was made by said Palmer to said Davidson were that on one night the said Palmer went to Davidson's house, and said to him: "I understand that my creditors will be on me, and I want your advice." Davidson thereupon told him that he had better make a general assignment for the benefit of all his creditors. At this suggestion, Palmer got Davidson to go to Birmingham, and have the proper paper prepared for him to make an assignment. Davidson went the next day, and while he was gone, Palmer proceeded to sell goods from his stock, and offered them, as some of the evidence tended to show, at reduced prices. Upon the return of Davidson, Palmer executed the deed of assignment to said Davidson, making him his assignee, but did not turn over to him, or account to him for, the goods he had sold during his absence in Birmingham having the deed of assignment prepared. All the other facts and contentions are sufficiently set forth in the opinion. The case was heard by the judge without the intervention of a jury; and upon the testimony he rendered judgment for the plaintiff, assessing the value of the goods sued for at $2,325. The defendant appeals, and assigns the various rulings of the court as error.

James Weatherly, Mountjoy & Tomlinson, and Garratt & Underwood, for appellant.

SOMERVILLE J.

The action is one of detinue, brought by the appellee, Davidson as assignee of one Palmer, against the appellant, Truss, for a stock of merchandise levied on by the latter, as sheriff under sundry writs of attachment. Unless the assignment under which the plaintiff claims title is void for fraud, there seems to be no good reason why he should not recover the goods, as this instrument of transfer was made and delivered on February 27, 1888, the day before the levy of the first attachment. The assignment, under the facts of the case, took effect, if at all, from the date of its delivery to the assignee; the latter having taken immediate possession of the assigned goods. Brown v. Lyon, 17 Ala. 659; Warner v. Jaffray, 96 N.Y. 248.

The rule in this state is settled to be that the assent of the creditors will be presumed to a deed of assignment which appropriates the property conveyed, absolutely and unconditionally, to the payment of the assignor's debts the instrument being free from fraud or illegality, and containing nothing which can be construed to be prejudicial to the rights of the creditors. So, while the rule is otherwise in some of the states, the settled doctrine in this state is that the fraudulent intent of the grantor alone will not avoid a deed of assignment to creditors unless the assignee or the creditors knew of, or participated in, the fraud.

The decisions are numerous on the foregoing propositions. Abercombie v. Bradford, 16 Ala. 560; Governor v Campbell, 17 Ala. 566; Rankin v. Lodor, 21 Ala. 380; Shearer v. Loftin, 26 Ala. 703; Wait, Fraud, Conv. (2d Ed.) § 316 et seq.; Burrill, Assignm. (4th Ed.) §...