Robinson, Boylston & McKeldin Co. v. Thomason

Supreme Court of Alabama

Robinson, Boylston & McKeldin Co. v. Thomason

113 Ala. 526

DecidedNovember 15, 1896

StatusPublished

This text of 113 Ala. 526 (Robinson, Boylston & McKeldin Co. v. Thomason) 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.

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Robinson, Boylston & McKeldin Co. v. Thomason, 113 Ala. 526 (Ala. 1896).

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Opinion

BRIO KELL, C. J.

The instrument under which the appellee deduced title to the goods in controversy, is a general assignment for the equal benefit of all the cred[528]*528itors of the assignor. By its tei’ms the property and effects transferred, are devoted absolutely and unconditionally to the payment of the debts, without any other delay than such as is incident to their reduction to money for the purposes of distribution. The assignee joined in the execution of the assignment, and covenanted to execute its trusts to the best of his skill and ability. It is assailed by the appellants as fraudulent; as having been executed by the assignors with the intent to hinder, delay and defraud their creditors, and because of their omission to surrender, and concealment from the as-signee, of moneys or assets, which were embraced in the assignment, or which its terms were broad enough to embrace. It was admitted that of the fraud, the assignee had no knowledge, and was without participation ; and there was no evidence tracing knowledge or participation to the creditors or any of them. In the recent case, Halsey v. Connell, Green & Co., 111 Ala. 221, we said of such an assignment, that it might be resorted to as a device to hinder, delay and defraud creditors, and the vitiating intent might be manifested on its face. But if on its face, it was free from all infirmity,-from fraud or illegality, bearing evidence that it was beneficial, not prejudicial to creditors, tlie assent to and acceptance of it by creditors would be presumed, and that it could not be avoided because of the fraud of the assignor, of which neither they, nor the assignee, had knowledge or notice, at the time of the acceptance; citing as authorities, 1 Brick. Dig. 130, § 96; 3 Brick. Dig. 519, §§ 156-57; Truss v. Davidson, 90 Ala. 359; Emerson v. Senter, 118 U. S. 3. There are authorities asserting a different doctrine, but we are not inclined to follow them ; certainly not to depart from deliberate decisions of this court, made after careful consideration, announcing a rule or principle, which ought to be fixed and stable.

The judgment of the city court is affirmed.

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BRIO KELL, C. J.

The instrument under which the appellee deduced title to the goods in controversy, is a general assignment for the equal benefit of all the cred[528]*528itors of the assignor. By its tei’ms the property and effects transferred, are devoted absolutely and unconditionally to the payment of the debts, without any other delay than such as is incident to their reduction to money for the purposes of distribution. The assignee joined in the execution of the assignment, and covenanted to execute its trusts to the best of his skill and ability. It is assailed by the appellants as fraudulent; as having been executed by the assignors with the intent to hinder, delay and defraud their creditors, and because of their omission to surrender, and concealment from the as-signee, of moneys or assets, which were embraced in the assignment, or which its terms were broad enough to embrace. It was admitted that of the fraud, the assignee had no knowledge, and was without participation ; and there was no evidence tracing knowledge or participation to the creditors or any of them. In the recent case, Halsey v. Connell, Green & Co., 111 Ala. 221, we said of such an assignment, that it might be resorted to as a device to hinder, delay and defraud creditors, and the vitiating intent might be manifested on its face. But if on its face, it was free from all infirmity,-from fraud or illegality, bearing evidence that it was beneficial, not prejudicial to creditors, tlie assent to and acceptance of it by creditors would be presumed, and that it could not be avoided because of the fraud of the assignor, of which neither they, nor the assignee, had knowledge or notice, at the time of the acceptance; citing as authorities, 1 Brick. Dig. 130, § 96; 3 Brick. Dig. 519, §§ 156-57; Truss v. Davidson, 90 Ala. 359; Emerson v. Senter, 118 U. S. 3. There are authorities asserting a different doctrine, but we are not inclined to follow them ; certainly not to depart from deliberate decisions of this court, made after careful consideration, announcing a rule or principle, which ought to be fixed and stable.

The judgment of the city court is affirmed.

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