G. Ober & Sons Co. v. Phillips-Burt-toff Mfg. Co. , 145 Ala. 625 ( 1906 )

ANDERSON, J.

This issue was made up under sections 2199 and 2200 of the Code of 1896, between the plaintiff in garnishment and the claimant of the fund, as suggested by the garnishee. The fact and bona fides of the transfer are alone in issue. — Rowland v. Plummer, 50 Ala. 182 ; McMullen v. Lockard, 64 Ala. 56.

It seems that the assignment of the policy was made after the loss by fire, and by the following endorsement : “The interest of Barron & Russell, as owners of property covered by this policy, is hereby assigned to PhillipsButtorff Mfg. Oo., subject to the consent of the Continental Insurance Company. (Signed) Barron & Russell. Dated Albertville, Ala., March 30th, 1899.” Under section 876 of the Code of 1896 this indorsement was sufficient to authirize an action on the policy by the assignee, and, this court has held, transferred the policy, when made after the fire, although the policy contained a stipulation prohibiting the assignment. — Perry v. Merchants’ Ins. Co., 25 Ala. 355.

The evidence shows that the debt for which the policy was assigned was only about one-third of the value of the policy; that the defendants were insolvent, or in failing circumstances; and that the assignees either knew," or had knowledge sufficient to charge them with notice, of the fact. This court has repeatedly held that if the property conveyed by an insolvent debtor in payment of pre-existing debts does not materially exceed in value the amount of the indebtedness owing and paid by the conveyance, and no benefit is reserved to the grantor, the conveyance is lawful as against his other creditors, regardless of the motives of the parties to the conveyance or of badges of fraud in the transaction. — Pollock v. Meyer, 96 Ala. 172, 11 South. 385. The price, however, must be reasonable, and if the debt is materially less than the value of the property conveyed in settlement thereof the law stamps the transaction as fraudulent as against the other creditors. — Moore, Marsh & Co. v. Penn & Co., 95 Ala. 200, 10 South. 343 ; Mobile Bank v. McDonnell, 89 Ala. 434, 8 South. 137, 9 L. R. A. 645, 18 Am. St. Rep. 137 ; Morrow v. Campbell, 118 Ala. 330, 24 South. 852 ; Gordon, Rankin & Co. v. Tweedy, 71 Ala. 202 ; Bump on Fraudulent Conveyances, § 44.

The assignment of the policy was indivisible, and if it* operated to transfer the amount thereof, over $1,900, to pay a debt of about one-third that sum, it would be void as against creditors. We need not consider whether it was proper to permit Forney to testify to a different assignment when the policy was delivered, yet he did so testify without objection of the plaintiff, and proved an assignment only of so much of the fund as was sufficient to pay claimant’s debt. He did not prove that it was received as security for the debt, but that only so much thereof was assigned as was necessary to pay claimant’s debt. This fact having been proved without objection, and without conflict, the claimant was entitled to the affirmative charge.

It is contended by counsel for appellant that some of the special pleas were proven, and that plaintiff was entitled to the affirmative charge. The judgment entry does not show that issue was joined on these pleas, and we will presume that the case was tried upon the issue contemplated by the statute — a denial of the claimant’s claim. We do not think the plaintiff can complain of the form of the judgment or of its failure to mention the amount. The proper judgment should have been one discharging the garnishee, but it shows a finding against the plaintiff, and it was only necessary for the amount to be set out in-the judgment in case of a finding for the plaintiff. — Code 1896, § 2200.

The judgment of the circuit court is affirmed.

Haralson, Tyson, Simpson, and Denson, JJ., concur.