Hicks v. Dadeville Oil Mill

Supreme Court of Alabama

Hicks v. Dadeville Oil Mill

59 So. 57, 177 Ala. 661, 1912 Ala. LEXIS 268

DecidedMay 28, 1912

StatusPublished

This text of 59 So. 57 (Hicks v. Dadeville Oil Mill) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hicks v. Dadeville Oil Mill, 59 So. 57, 177 Ala. 661, 1912 Ala. LEXIS 268 (Ala. 1912).

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Opinion

DOWDELL, C. J.

The present appeal is prosecuted from the decree of the chancellor overruling the respondents’ demurrer to the bill. The purpose of the bill is to have certain mortgages therein described declared a general assignment for the benefit of all creditors.

[663]*663The hill avers that the several mortgages, Exhibits D, E, and F, were each given to secure a prior indebtedness of the mortgagors to the mortgagees, and the said several mortgages are averred to be the property of the respondent Hicks, and it is alleged that they convey substantially all of the property of the mortgagors. The bill further shows that the last of said three mortgages, Exhibit F, Avhich was executed by the respondents Ada E. and F. P. Wallace to the respondent Hicks on the 3d day of January, 1911, was given to secure the prior indebtedness represented and contained in the other two mortgages, Exhibits E> and E, as well, also, as other preexisting debts OAving by the respondents Wallace, mortgagors, to the mortgagee, respondent Hicks, and it is shown that as a part of the consideration of the last mortgage, Exhibit F, the indebtedness of the first two mortgages is extended, and it is averred that these several transactions became and were one transaction, culminating in the mortgage of January 3, 1911, which conveyed substantially all of the debtor’s property.

These averments are confessed on demurrer to the bill; and, such being the facts, the transaction became and operated as a general assignment for the benefit of existing creditors.—Danner & Co. v. Brewer & Co., 69 Ala. 191; Collier v. Wood, 85 Ala. 91, 4 South. 840; Anniston Carriage Works v. Ward, 101 Ala. 670, 14 South. 417; Merchants’ & Farmers’ Bank v. Paulk, 124 Ala. 591, 27 South. 468; Baxley v. Simmons, Dunham & Co., 132 Ala. 117, 31 South. 76.

It may be that a part of the consideration for the mortgage of January 3, 1911, was for the supplies to be advanced by the mortgagee to the mortgagors; but the principal part of the consideration was a prior indebtedness from the mortgagors to the mortgagee, and this is shoAvn by the recitals in the mortgage itself. In such [664]*664a case, where substantially all of the debtor’s property is conveyed, the mortgage will be declared a general assignment for the benefit of all of the creditors, except as to the advances stipulated to be made.—See Collier v. Wood, supra.

It is averred in the bill that at the time of the execution of the mortgage of January 3, 1911, by which it is alleged that substantially all of the debtor’s property was conveyed, the mortgagors were indebted to the complainant in the sum of $421.46, in addition to other indebtedness therein described. This is sufficient for the purposes of the bill, without specifying the particular time the same became due; it being alleged that it was then due and unpaid. It is not necessary for the bill to show that the debt of complainant was not barred by the statute of limitations. That is a matter of defense —if it exists — that may be shown by plea.

What we have said covers the main objections taken to the bill on demurrer and insisted on in brief. Other objections are Avithout merit. We find no error in the decree of the chancellor overruling the demurrer, and the decree will be affirmed.

Affirmed.

All of the Justices concur.

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DOWDELL, C. J.

The present appeal is prosecuted from the decree of the chancellor overruling the respondents’ demurrer to the bill. The purpose of the bill is to have certain mortgages therein described declared a general assignment for the benefit of all creditors.

[663]*663The hill avers that the several mortgages, Exhibits D, E, and F, were each given to secure a prior indebtedness of the mortgagors to the mortgagees, and the said several mortgages are averred to be the property of the respondent Hicks, and it is alleged that they convey substantially all of the property of the mortgagors. The bill further shows that the last of said three mortgages, Exhibit F, Avhich was executed by the respondents Ada E. and F. P. Wallace to the respondent Hicks on the 3d day of January, 1911, was given to secure the prior indebtedness represented and contained in the other two mortgages, Exhibits E> and E, as well, also, as other preexisting debts OAving by the respondents Wallace, mortgagors, to the mortgagee, respondent Hicks, and it is shown that as a part of the consideration of the last mortgage, Exhibit F, the indebtedness of the first two mortgages is extended, and it is averred that these several transactions became and were one transaction, culminating in the mortgage of January 3, 1911, which conveyed substantially all of the debtor’s property.

These averments are confessed on demurrer to the bill; and, such being the facts, the transaction became and operated as a general assignment for the benefit of existing creditors.—Danner & Co. v. Brewer & Co., 69 Ala. 191; Collier v. Wood, 85 Ala. 91, 4 South. 840; Anniston Carriage Works v. Ward, 101 Ala. 670, 14 South. 417; Merchants’ & Farmers’ Bank v. Paulk, 124 Ala. 591, 27 South. 468; Baxley v. Simmons, Dunham & Co., 132 Ala. 117, 31 South. 76.

It may be that a part of the consideration for the mortgage of January 3, 1911, was for the supplies to be advanced by the mortgagee to the mortgagors; but the principal part of the consideration was a prior indebtedness from the mortgagors to the mortgagee, and this is shoAvn by the recitals in the mortgage itself. In such [664]*664a case, where substantially all of the debtor’s property is conveyed, the mortgage will be declared a general assignment for the benefit of all of the creditors, except as to the advances stipulated to be made.—See Collier v. Wood, supra.

It is averred in the bill that at the time of the execution of the mortgage of January 3, 1911, by which it is alleged that substantially all of the debtor’s property was conveyed, the mortgagors were indebted to the complainant in the sum of $421.46, in addition to other indebtedness therein described. This is sufficient for the purposes of the bill, without specifying the particular time the same became due; it being alleged that it was then due and unpaid. It is not necessary for the bill to show that the debt of complainant was not barred by the statute of limitations. That is a matter of defense —if it exists — that may be shown by plea.

What we have said covers the main objections taken to the bill on demurrer and insisted on in brief. Other objections are Avithout merit. We find no error in the decree of the chancellor overruling the demurrer, and the decree will be affirmed.

Affirmed.

All of the Justices concur.

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59 So. 57, 177 Ala. 661, 1912 Ala. LEXIS 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-dadeville-oil-mill-ala-1912.

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