Drake v. Rogers

• Decision Date: 31 May 1840
• Citation: 6 Mo. 317
• Court: Missouri Supreme Court
• Parties: DRAKE v. ROGERS & SHREWSBURRY.

6 Mo. 317

DRAKE

v.ROGERS & SHREWSBURRY.

Supreme Court of Missouri.

May Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

SPALDING, for Appellant. 1. There is no fraud in fact proved; this will be apparent from an inspection of the record, &c. 2. The deed is a valid one. 1. It was a sufficient deed to pass the partnership effects. Collyer on Partnership, 424-5, and 492-3, as to all partners suing and being sued where there is a dormant partner. Angell on Assignments, 49, 50; 1 Paige's Ch. R. 517; 4 McCord's R. 519; 4 Wash. R. 232; 4 Day's R. 428; 5 Cranch R. 300. 2. The fact of a release being required does not invalidate it. Angell on Assignment, 95-105; 4 Mason R. 206; 3 Price's R. 6. 3. It is not invalid in consequence of attachments being served before the creditors, or any of them, assented, &c. Angell on Assignments, 168, as to general principles. Ibid. 171, n. 2, that assent is presumed as to preferred creditors. 11 Wheat. R. 78 (6 Pet. Con. 232), ibid. 173, that the different decisions in Massachusetts are owing to the peculiar laws there, &c. 4 Mason R. 206, and Angell, 19; 3 Maule and Selwyn, 372. 4. It is not void for the want of, or defect in, schedules of property conveyed, or creditors provided for. 3 Mo. R. 252, Deaver v. Savage et al.; Angell on Assignments, 71 7 Peters' R. 614.

GAMBLE and POLK, for Appellees. 1st. The deed of assignment set out in the answer of the garnishee, and in the bill of exceptions, and under which Drake claimed, as interpleader, is fraudulent per se. Austin v. Bell, 20 Johns. R. 442; Clark v. Hyslop, 14 Johns. R 459, and Laving v. Brickenhoff, 5 Johns. Ch. R. 329. 2d. The deed in question is a tri-partite deed, requiring to be executed by creditors as well as by assignors and assignee, and this attachment was issued and served, both on defendants and garnishees, before the execution of the deed by any of the creditors, and holds the effects attached in opposition to claims under the deed. See 5 Mo. R. 241; 15 Mass. R. 153; 13 Mass. R. 148, and 17 Mass. R. 457-8. 3d. This deed was not executed by Sisson, a partner of Eads & Buchanan, but only by Eads & Buchanan, and, therefore, it does not pass the partnership effects. Hughes v. Ellison, 5 Mo. R. 463. 4th. There was no proof in this cause that the persons named in the schedule headed “preferred claims” were creditors to the amount assumed, and the assignment is, therefore, void as to Rogers and Shrewsburry. See Crow & Tevis v. Ruby, 5 Mo. R. 484.

NAPTON, J.

The appellees brought an action of assumpsit against Thomas C. Eads, Ezekiel Buchanan and Freeborn Sisson. An attachment issued, on the usual affidavit, which was served on the defendant, Sisson, but was not executed on Eads or Buchanan. Divers persons were summoned as garnishees, and among others Charles D. Drake, the appellant. The answer of Drake, after responding negatively to the interrogatories, stated, that on the 4th of April, 1836, the said Eads & Buchanan executed to him a deed of assignment, a copy of which, with its annexed schedule, was attached to his answer. He further stated that he had taken immediate possession of the goods pointed out to him as the stock of said Eads & Buchanan, and immediately placed the goods at an auction store, to be sold. He also took possession of the goods in transitu consigned to said firm, so soon as they reached St. Louis. An account of the sales is given to the amount of $2622 89, and he admitted in his hands, as assignee, after deducting expenses of sale, $2292 20. No disposition had been made of the lands assigned. The deed of assignment is a tripartite deed, between said Eads and Buchanan of the first part, said Drake of the second part, and the creditors of said Eads and Buchanan, who should become parties thereto, of the third part. The deed was executed by Eads in person, under seal; by Buchanan, by his attorney, the said Drake, on the 4th of April, 1836; by said Drake, as party on the second part, on the same day; and by three creditors, who executed by their attorney, Charles D. Drake, under seal, on the 3d of August, 1836. The trusts declared in the deed were: 1st. To pay expenses of assignment. 2d. To pay the claims of the several creditors, headed “preferred creditors.” 3d. To pay the claims of those creditors who should execute the deed within four months from the date of the deed, with a proviso that no claim shall be paid unless claimant shall come into the deed as above stated. The deed contains a release from all the creditors. Charles D. Drake filed an interpleader, and claimed the property attached in...