Cook v. Thornton , 109 Ala. 523 ( 1895 )

BRICKELL, C. J.

There was no error in the exclusion of the evidence of the declaration of the wife of the defendant in attachment to the officer making the levy. It was not shown that she had possession of the goods, if it could be deemed a declaration explanatory of possession. As the evidence was offered, it was mere hearsay the court was bound to exclude.

The rule of law is not controverted that to support trespass for the taking of goods the plaintiff must show that he had at the time of the taking the actual possession of the goods,or the right of immediate possession of them,for the gist of the action is the injury to the possession. The bill of sale made by Picket t on the 29th May, 1890,was operative not only to pass to Thornton the title to the goods, but the right of immediate possession, whatever may have been the operation of the subsequent agreement into which they entered. .The instruction requested by the appellants that the written agreement in evidence did not confer on Thornton the right of immediate possession, is erroneous if referred to the bill of sale, whether it be correct or not if referred to the subsequent agreement. There can be no assurance,if the instruction had been given, to which of the instruments the jury would have referred it. The instruction was therefore ambiguous, and, without explanation, calculated to mislead the jury. The refusal of such instructions is the duty of the court. 1 Brick. Dig. 339, § § 59-61. Besides, there was other evidence than the writing, which the instruction ignores, having a tendency to show that the 'plaintiff had the right of immediate possession of the goods at the time of the levy.

It cannot be said the evidence in all material aspects is free from conflict, nor that there are not facts material in any ph ase of the case to be inferred from the evidence, the inference lying within the exclusive province of the jury. In this condition of the evidence, the general affirmative charge could not properly have been given at the instance of either party.

This is'the second appeal in this-case. Thornton v. Cook, 97 Ala. 630. We do not discover any material change in the evidence, and the instructions given at the instance of the appellee seem to conform to well set-tied principles, and the views expressed on the former appeal.

When a creditor purchases from an insolvent or failing debtor goods or other property in a payment of his debt, paying a fair, reasonable price, if other creditors assail the transaction as fraudulent because there was a reservation of a benefit to the debtor, it is a mere truism to say, the burden of proof rests on the attacking creditors. Murray v. Heard, 103 Ala. 400, and authorities cited. The evidence is without conflict that Thornton, inpayment of a debt, the bona fides of which is undisputed, purchased the goods from Pickett, and that the debt was equivalent to the value of the goods. In this state of the evidence, the first instruction given at the instance of the appellee is free from error.

The second instruction but affirmed the elementary principle we have already stated,that if the plaintiff had the actual possession, or the right of actual possession he could maintain trespass for the taking of the goods.

It is a doctrine we do not suppose it is now intended to controvert, that a failing or insolvent debtor may sell to a creditor a part or all of his property, in payment of his debt. The sale, notwithstanding the known insolvency of the debtor, and of its tendency, or inevitable effect,to leave all other creditors unpaid,will be supported, if the debt equals the fair and reasonable value of the property, and there is not a reservation to the debtor of some use or benefit beyond that which results from the nature* and character of the transaction. Goetter v. Smith, 104 Ala. 481, and authorities cited. In such case, there can be no fraud. The debtor exercises a right the law confers, that of preferring the creditor he will pay; the creditor exercises only the legal right of accepting property instead of money in payment. This is the proposition embodied in the third instruction given at the instance of the appellee ; and it is substantially repeated in the fourth instruction.

We find no error in the fifth instruction. It postulates that if, prior to the levy of the attachment, there had been delivery of the goods to the plaintiff, and. he had placed his clerk in possession of them, the temporary absence of the clerk would not be an abandonment or surrender of the possession. The continuity of a possession is not broken, or its nature or character changed, by the temporary absence of the possessor or his bailee. The continuity is broken, or the nature of the possession changed, only when there is an intention manifested to abandon it.

We find no error in the record, and the judgment must be affirmed.