Cottingham v. Greely Barnham Grocery Co. , 137 Ala. 149 ( 1902 )

TYSON, J.

Garnishment by a judgment creditor against a transferee under an- alleged fraudulent conveyance from the debtor.

On former appeal in this case, we held thaiti “the effects of the debtor in the possession of the garnishee, in order to' be subjected, must be of such sort as that, when so ordered by the court, he can deliver them to- the sheriff, that the latter may make sale thereof,” and that notes and accounts, being mere choses in action, the court could not direct a sale of them. — Cottingham v. Greely-Barnham Grocery Co., 129 Ala. 200; 30 So. Rep. 560, But this is far from holding that after the ■ garnishee, when shown to have acquired the notes and account by a fraudulent transfer, has collected money upon them, that the money cannot be subjected. In contemplation of law, as against the creditors the money so- collected is the property of the debtor, and therefore subject to- the writ of garnishment. There was, therefore, no; error in the ruling of the court upon the motion to strike a certain part- of the tender of issue, nor in the admission of the evidence introduced by plaintiff to show that the-garnishee had collected certain sums of money upon the notes and accounts, there being evidence tending to show, that the transfer by which he -acquired the ownership from the debtor of these choses in action was actually fraudulent.

A misstatement of the consideration in the bill of sale is not. conclusive evidence of fraud, but only presumptive evidence of'it, .which may be rebutted. — Stover v. Herrington, 7 Ala. 142. In view-of the-tendency of the testimony offered in behalf of garnishee that he was a tona fide creditor in a sum much larger than the value of the property conveyed to' him, which if believed by the jury, rendered the conveyance lawful, regardless of the relation of the parties to' it or of the' badges of fraud (Pollock v. Meyer, 96 Ala. 172), the giving of the .written charges at the request of plaintiff was error.

Reversed and remanded.