Harseim v. Booth

Decision Date21 April 1893
Docket Number16,205
PartiesHarseim et al. v. Booth et al
CourtIndiana Supreme Court

From the Hamilton Circuit Court.

Judgment affirmed, with costs.

N Morris, L. Newberger, J. B. Curtis, R. R. Stephenson and W R. Fertig, for appellants.

T. J Kane and T. P. Davis, for appellees.

OPINION

Olds, J.

Daniel J. and Elisha Booth owned a stock of general merchandise of the value of from $ 4,000 to $ 5,000, situate in the town of Sheridan, in Hamilton county, Indiana, each of said parties owning a one-half interest in the same. They were at the time indebted to various persons and firms in large sums, and, on the 21st day of February, 1891, they executed a written instrument, selling, assigning and transferring the possession of the goods. The written instrument so executed by them stated that they "jointly and severally sell, convey, assign and set over to Rebecca Booth, Harriet E. Booth, William Booth, Abraham Littleton, and Elbert H. Shirk, of said county and State, their several and respective interests" in the property, describing it, "as for the payment of the following indebtedness owing by said Daniel J. Booth and Elisha Booth, in part several and in part joint, to wit: One note, executed by Daniel J. Booth to Rebecca Booth, on the first of October, 1890, due at one day, for two thousand dollars, with attorney's fees and interest at the rate of eight per cent. per annum. One note, executed by Daniel J. Booth to William Booth, for one hundred dollars and interest; and one note executed by Daniel J. Booth to Abraham Littleton, for one hundred dollars, and this is to secure whatever may be due on said note. One note executed by Elisha Booth to Harriet E. Booth, on the third day of October, 1890, due at one day, for two thousand dollars with attorney's fees and interest at the rate of eight per cent. per annum; and one note executed by Elisha Booth to William Booth, for two hundred dollars and interest; and, also, one note executed by Booth Bros. to E. H. Shirk, about January, 1891, for two hundred and fifty dollars."

The said Daniel J. Booth and Elisha Booth now deliver to said Rebecca Booth and Harriet Booth the full possession and control of all of said property and rights and security for the payment of said debts aforesaid on the following terms and conditions, that is to say, the said Rebecca Booth and Harriet E. Booth are to proceed to sell in the usual course of trade, "stipulating the manner of sale, keeping account of sales, and retaining out of the sales the running expenses. And after the payment of expenses, one-half of the receipts shall be applied to payment of said debt evidenced by the note executed by Daniel to Rebecca, and one-half to the payment of the note executed by Elisha to Harriet; and then, when said notes and interest are paid, the remaining proceeds shall be so divided, used and applied until all the other debts named in the writing and secured are fully paid, "and then the residue thereof so divided as aforesaid shall be paid to said Daniel J. Booth and Elisha Booth or any other creditors they or either of them may owe," reserving the right of exemption.

It was further provided in the writing that when said debts specified in the contract had been paid, "the residue shall be delivered one-half to each of the several parties as herein stated, or the proceeds thereof expended for their several benefit as they may respectively direct."

The appellants, who are unsecured creditors of Daniel J. and Elisha Booth, brought this suit to have the assignment declared a voluntary assignment for the benefit of all creditors under the statute providing for voluntary assignments, and to have a receiver appointed to close up the business, and they seek to share pro rata in the assets, the assignors being insolvent.

The only question discussed in the case relates to the construction to be given to the written assignment. It being contended, on behalf of counsel for appellants, that it constitutes a voluntary assignment under the statute, and that no preference can be made in favor of any creditors. While, on the other hand, counsel for appellees contend that it is not a voluntary assignment for the benefit of all creditors, but is an assignment and transfer of the property of the...

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