Moses, Blum & Weil v. Dunham, Buckley & Co. , 71 Ala. 173 ( 1881 )

STONE, J.

On the trial in the court below a charge was asked by appellants, the charge refused, and an exception reserved. No mention is made of that exception in the argu-merits of counsel, and we suppose it is not insisted on. The vice of the charge is, that it sought to have the jury perforin a service which the court alone was competent to perform. The only questions for our consideration arise on the admission of testimony offered by plaintiffs below, and objected to by defendants — appellants in this'court. The record does not purport to set out all the evidence, but only enough to raise the questions.

The plaintiffs below were attaching creditors of Baum & Kull-man. These attachment suits were reduced to judgment before the trial was had. The Eagle & Phoenix Company, one of the attaching creditors, offered proof tending to show its claim was contracted in September, 1880, and waá evidenced by an acceptance payable at the First National Bank in Montgomery, November 20-22, T880. The acceptance being dishonored, the attachment was sued out in the evening of. the last day of grace. We are not informed when the claim of Dun-ham, Buckley & Co., the other attaching creditors, was contracted.

On the 22d day of November, 1880 — hour of the day not shown — Baum & Huffman, merchants, confessed six several judgments in favor of the defendants in the court below — appellants here — for various sums, aggregating about $8,150, besides Costs. Executions on these confessed judgments were issued on the same day, and placed in the hands of the sheriff, who proceeded to levy them on the stock of merchandise in the store-house of Baum & Huffman. The sheriff sold these goods in January,1881, and realized for them something over $9,000. The attachments of the Eagle & Phoenix Manufacturing Company and Dunham, Buckley & Co., the appellees, were issued on the same day, November 22d, 1880, and were received by the sheriff and levied on the merchandise the same day, but after the levy of the executions issued on the confessed judgments. The attaching creditors notified the sheriff not to pay over the money realized from the sale of the merchandise, to the execution creditors; that they, the attaching creditors, claimed priority of payment, and that they attacked the confessed judgments as fraudulent. The sheriff thereupon reported the facts to the court, and asked for instructions as to the disbursement of the money. An issue was then formed, and tried before a jury; the attaching creditors being actors or plaintiffs, and the execution creditors being defendants; all the cases being tried together. The real issue tried was fraud vel non in the confession of the judgments, and the exceptions relate to conduct of, and conversations with Baum & Huffman, the common debtors of all the contestants, extending over a period of about one month anterior to .November 22d, 1880.

Many cases have arisen, and been decided in this court, presenting a contest between an attaching or execution creditor on one side, and a purchaser on the other. The rule in such cases is, that a purchaser who has paid value, without notice, actual or constructive, of a fraudulent intent on the part of the seller, stands unaffected by the intension of the seller in making the sale, no matter how fraudulent that intention may have been. The reason is, that the purchaser, in fair trade, innocently parts with his property or money, and it is neither the mandate of the law, nor the requirement of morals, that he should suffer for the evil design of another. It rests on the fact that something valuable has been parted with, or some fixed liability incurred, as the consideration of the conveyance or transfer. If the conveyance be gratuitous, or, if the purchaser have notice, actual or constructive, of the seller’s purpose to defraud his creditors, then the evil design of the seller taints the title of the purchaser.-Wells v. Morrow. 38 Ala. 125; Crawford v. Kirksey, 55 Ala. 282; Lehman, Durr & Co. v. Bryan, 67 Ala. 558. Out of this has grown a wen considered and well settled principle of evidence, namely: That in such contests, which most usually arise in “ trials of the right of property” — a proceeding under our statutes — the admissions and declarations of the debtor, made anterior to the sale, under which the claimant asserts title, are not admissible evidence against him to show a fraudulent intent on the part of such debtor in making the sale, provided the sale was on valuable consideration, and the purchaser is not chargeable with knowledge of the fraudulent intent.-Smith v. Rogers, 1 Stew. & Por. 317; Jones v. Norris, 2 Ala. 526; Oden v. Rippetoe, 4 Ala. 68; Abney v. Kingsland, 10 Ala. 355; Newcombe v. Leavitt, 22 Ala. 631; Mahone v. Williams, 39 Ala. 202; 2 Brick. Dig. 18, § 71; Pickett v. Pipkin, 64 Ala. 520; Bradley v. Ragsdale, Ib. 558. It is contended for appellants that the questions raised by this record fall within the principle stated above.-

But, it must be borne in mind that the appellants in this case are not purchasers of the merchandise, and are not shown to have surrendered or parted with anything valuable. They are simply creditors, asserting a lien — a first lien — in virtue of their excutions, first received by the' sheriff, and first levied. This record contains no evidence of the time when their several claims accrued, other than the judgments confessed, if those judgments were evidence for or against strangers, of the existence of the liabilities therein acknowledged. — 1 Brick. Dig. 823, § 273. Taking, then, the time when the judgments were confessed — November 22d, 1880 — as the first and only evidence of the debts, there is nothing in this record to show that any act done by, or conversation had with -Baum & Huffman, offered in evidence, took place after the judgments were confessed. It is our duty to presume every thing in favor of the correct ruling of the City Court, which the record does not affirmatively show to be otherwise. 1 Brick. Dig. 781, §§ 118, 120. In Horton v. Smith, 8 Ala. 73, it was decided that the declarations of a holder of personal property, with regard to his rights and liabilities, are evidence against any one coming after such declarations into his place, or representing him in respect to such rights and liabilities. See, also, Goodgame v. Cole, 12 Ala. 77. The general rule that recitals in a deed, made by a debtor, or admissions by him at the time of its execution, are not evidence to prove the debt in a contest with others, must be confined to declarations and admissions made after the creation of the contesting creditor’s debt.-Goodgame v. Cole, supra; Dubose v. Young, 14 Ala. 139; Gillespie v. Burleson, 28 Ala. 551; Pearce v. Nix, 34 Ala. 183; Alexander v. Caldwell, 55 Ala. 517.

Applying this principle to this case, it justified the admission in evidence of acts, declarations and conversations of Baum & Huffman in relation to their property, the debts due to the attaching creditors, and their plans and purposes in regard to. their payment, at least until the contestants showed themselves to be creditors. None of the testimony given by plaintiffs’ witnesses against the objection- of defendants, is shown to have been illegal.

Affirmed.