The appellant sued out an attachment against the appellee, upon an affidavit made by appellant that the appellee had sold his property with the fraudulent intent to cheat, hinder or delay his creditors. The ground of the attachment was controverted by the appellee, and, upon his motion, the attachment was discharged. The Grocery Company appealed to this court.
Ferguson, the appellee, was a merchant in failing circumstances. He owed several persons, among them the appellant, whose claim against him was $349.56. He owed the T. D. Bourland Grocer Company $686.85, with interest, and was indebted to other parties. His creditors were pressing him for payment. He promised the appellant that, if he sold his stock, they should have their fro rata share of it, and that if he did not sell, his goods would be on hand for his creditors. The appellee sent for the president of the T. D. Bourland Grocer Company, and proposed to him to sell him his stock of groceries, his store fixtures, his delivery wagon and horses, for the debt he owed his company, and $275 in cash. Bourland, the president of the company, at first declined the offer, and offered the debt for the goods, which the appellee declined to accept. After-wards Bourland accepted the offer of appellee, paid him $275 in cash, and took the stock of goods. After the sale, and after the attachment had been sued out, the appellee collected of his outstanding indebtedness $166.05, which, with the $275 Bourland paid him, amounted to $441. He paid out on his debts of this sum $120, but refused to pay the appellant anything, though they importuned him to do so, and offered to accept $150 in full for their debt. He paid out nothing on any of his debts save the $120. He had stated to Bourland that he wanted to get all he could out of the property he sold for his creditors. The court found that the debt of the T. D. Bourland Grocer Company exceeded in amount the real value of the goods it bought of the appellee. There was no interplea by the T. D. Bourland Grocer Company. The appellee refused to do anything towards paying or securing the debt of appellant, after promising that, if he sold, he would see that it received its fro rata of the proceeds of the sale.
We are of the opinion that the evidence shows pretty clearly that the appellee sold his property with the fraudulent intent to cheat, hinder or delay his creditors, and that for this reason the attachment ought to have been sustained.
We do not decide the rights of the Bourland Grocer Company to the property. Had it interpleaded, which it may yet do, and had it appeared from the evidence that its debt was more than the value of the goods they bought, we are unable to see that the fraud of Ferguson could affect its rights.
The judgment is reversed, and the cause is remanded for a new trial.