Collier & Jones v. Wood Bros. , 85 Ala. 91 ( 1887 )

STONE, C. J.

As to all tbe property, then in actual existence, conveyed by Warrick’s mortgage on May 21, 1886, and as to all tbe debt to Collier & Jones, save that part which was contracted simultaneously with tbe execution of tbe mortgage, we agree with tbe chancellor that tbe conveyance must be held a general assignment, — Code of 1886, § 1737. It is clearly shown, and without conflict, that tbe conveyance contains substantially all of Warrick’s property, and it must “enure to tbe benefit of all tbe creditors of tbe grantor equally.” — Holt v. Bancroft, 30 Ala. 193; Stetson v. Miller, 36 Ala. 642; Crawford v. Kirksey, 55 Ala. 282; Bromberg v. Heyer, 69 Ala. 22; 74 Ala. 524; Watts v. Eufaula National Bank, 76 Ala. 474.

In bolding that Wood Brothers bad a vital lien by virtue of their execution, which prevailed over tbe mortgage, tbe chancellor erred. Their latest execution, issued prior to tbe making of tbe mortgage, bore date December 21, 1884, and was returned April 8, 1885. Tbis was more than twelve months before tbe mortgage bears date — May 21, 1886. Tbis caused a lapse of more than an entire term, and tbe lien was lost. — Code of 1886, § 2894, and authorities cited. Tbe execution issued in July afterwards could not restore tbe lost lien.

Under tbe principles declared above, it becomes important to inquire what part of the debt to Collier & Jones was contracted contemporaneously with tbe execution of tbe mortgage ; for as to such part, tbe doctrine of general assignment does not apply. Tbis will include every thing purchased, or received by Warrick at that time, and every thing purchased and received by him subsequently, pursuant to tbe terms of tbe agreement then made. — Tison v. People's S. & L. Asso., 57 Ala. 323; Lovelace v. Webb, 62 Ala. 271; Collier v. Faulk, 69 Ala. 58.

Both tbe crops and other property conyeyed are subject in tbe first instance to Warrick’s debt, contracted contemporaneously with tbe mortgage; and this will include advances afterwards made, pursuant to tbe mortgage agreement. After satisfying this part of tbe debt due to Collier & Jones, then any balance ’of tbe property mortgaged, including crops and every thing else conveyed by tbe mortgage, enures equally to Collier & Jones and tbe complainants, pari passu; and to any and all other creditors, in whose favor Warrick has waived bis exemptions of personal property. Creditors not having waiver of exemptions, it would seem, have no recourse against exempt property, if claimed. — Shirley v. Teal, 67 Ala. 449; Danner v. Brewer, 69 Ala. 191.

[Reversed and remanded.