Aycock v. Ft. Branch Mill. Co. , 182 Ala. 326 ( 1914 )

on rehearing.

McCLELLAN, J.

The decree appealed from contains this adjudication: “It is therefore considered, adjudged, and decreed by the court that said sale ivas a general assignment, which inured to the benefit of all the creditors of said Sims having obligations waiving exemptions.. * * *”

The complainant is a creditor in whose favor Sims waived his exemptions. The personal property assigned to Aycock by Sims was of a value less than $1,000— the maximum, in value, of exemptions of personal property of the character here, involved. It is now insisted for appellant, and so .upon the conceived authority of Loeb Grocery Company v. Brickman & Company, 173 Ala. 316, 56 South. 119, that the decree is affected with error for that it restricts the. beneficiaries of the adjudged general assignment to those creditors in .whose favor Sims had waived his exemptions. The contention cannot be sustained. — Collier & Jones v. Wood, 85 Ala. 91, 95, 4 South. 840.

The decision in the Loeb-Brichman Appeal, supra, turned upon the sufficiency, on demurrer, of a bill seeking to have a disposal of all of the debtor’s property (which was in that case of a value not exceeding $1,000) in paying and thus preferring, certain creditors who held the debtor’s waiver of exemptions, declared a general assignment for the exclusive benefit of all creditors holding the debtor’s waiver of' exemptions. There, the question was one of pleading only. Here, the point of the objection is the decree’s administration and distribution of the subject of the general assignment — so soundly adjudged under the statute (Code, § 4295) upon a bill for that purpose filed by one who holds a waiver of the debtor’s exemptions. The effect of the statute is to deny the debtor’s right, as at common law, to prefer a creditor or creditors. Both the spirit and the letter of the statute are made justly effective by giving it an operation that forbids the preference by a debtor, in assigning his exempt property, of one or more creditors against whose debts exemptions have been waived, over another or other creditors holding a like waiver of the debtor’s exemptions. In such cases the judicial pronouncement that the assignment is a general assignment cannot, of course, be given the effect to let in' general creditors (without waivers) to share in the distribution; for, as said in Shirley v. Teal, 67 Ala. page 452, “we cannot appreciate the force of the logic which would convert a special waiver in favor of one, into a general waiver in favor of all,” the debtor’s creditors, whether holding the debtor’s waiver or not. Furthermore, to do so would unjustly deprive the provident creditors, who took waivers from the debtor, of the benefit of their contracts in this respect.

There are expressions in Loéb Grocery Company v. Brickman, supra, that are not in harmony with these conclusions; and to that extent that decision is qualified.

Rehearing denied.