Collier v. Wertheimer-Schwartz Shoe Co. , 122 Ala. 320 ( 1898 )

HARALSON, J.

— 1. The bill in this case avers that the attachment Avas sued out by plaintiff against the defendant in attachment on the statutory ground that the defendant, “McBryde, has moneys, property or effects liable to satisfy his debts, which he fraudulently withholds; * * * that said ground of attachment did not exist; that the plaintiff knew that there was no probable cause for the issuance of said attachment upon said ground, or on any other ground, or under the statute.” It further avers, that the defendant was insolvent, and that the plaintiff and defendant in attachment knowing that there was no ground for said atachment, conspired and agreed together, expressly or impliedly, that said attachment should be sued out and levied, and that they thereby fraudulently and illegally perverted the spirit and purposes of the attachment law in a manner that-deprived complainant of the power of making and collecting his debt out of the effects of said McBryde — the defendant in the attachment.

The statute provides that “All conveyances, or assignments in writing of any estate or interest in real or personal property, and every charge upon the same, made with the intent to hinder, delay, or defraud creditors, purchasers, or other persons of their lawful suits, damages, forfeitures, debts or demands; and every bond, or other evidence of debt given, suit commenced, decree or judgment suffered, Avitli the like intent, against the persons Avho are or may be so hindered, delayed or defrauded, their heirs, personal representatives and assigns, are void.” — Code, §2156 (1735). In construing this statute it Avas said by this court: “No one doubts that a writ of attachment, issued collusively betwen creditor and insolvent debtor, for the purpose of giving preference,. and with the intent to effect a fraudulent transfer of the debtor’s property to the plaintiff in attachment, through the machinery of the attachment process is a void suit Avithin the meaning of section 1735 of the Code. Nor can we see any reason why the suffering such an attachment by the debtor, with like fraudulent intent, is not an ‘attempt’ to fraudulently transfer the attached property within the meaning of section 3544 of the Code,” — (section 818 of the Code of 1896) — which authorizes a simple contract creditor to file a bill to subject to the payment of his debt any property which has been fraudulently transferred or conveyed, or attempted to be fraudulently transferred or conveyed by bis debtor. — Cartwright v. Bamberger, 90 Ala. 405; The Planters & M. Bank v. Laucheimer, 102 Ala. 454; Rice v. Less, 105 Ala. 298; Comer v. Heidelbach, 109 Ala. 220.

3. If the facts averred in the bill are true, there can remain no doubt that under our own decisions, well supported by reason and authority elsewhere, the deceitful agreement charged against the parties to this attachment proceeding was a-fraud perpetrated on the defendant’s other creditors; the direct effect of which was to hinder and delay them in the collection of their debt against the defendant. We need not here repeat, in support of the equity of the bill, what has been so fully said in the cases cited above on this subject.

There was no error in overruling the demurrer to the bill.

Affirmed.