Bank of Cookville v. Brier

• Decision Date: 26 September 1895
• Citation: 32 S.W. 205,95 Tenn. 331
• Parties: BANK OF COOKVILLE v. BRIER et al. THREAT v. SAME. DIBBRELL et al. v. SAME. FALLERS et al. v. SAME.
• Court: Tennessee Supreme Court

32 S.W. 205

95 Tenn. 331

BANK OF COOKVILLE v. BRIER et al.

THREAT v. SAME.

DIBBRELL et al. v. SAME.

FALLERS et al. v. SAME.

Supreme Court of Tennessee.

September 26, 1895

Appeal from court of chancery appeals.

Attachment bills by the Bank of Cookville, W. C. Threat, and Isaac Fallers, Sons & Co., respectively, against H. D. Brier and others, and a cross bill by Murray Dibbrell & Co. against the same defendant, consolidated. The original bills ask to have two conveyances of the defendant's property declared void, one as in fraud of creditors, and the other as a general assignment. From a decree declaring the conveyances valid, and refusing personal judgments against the defendants, the complainants in the original bills appealed and from a decree of the court of chancery appeals declaring them valid, and giving personal judgments, the defendants and cross complainant appeal. Affirmed.

Dennie & Currie, for complainants.

Turner Young & Smith, for defendants.

WILKES J.

These are attachment bills (except that of Murray Dibbrell & Co. which is a cross bill), consolidated and heard together. The original bills attach a stock of merchandise and certain real estate, and attack two conveyances of the same made by Brier on the ground that one purports to be a general assignment under Acts 1881, c. 121, but is invalid and void, because it does not comply with the requirements of that act, and the other on the ground that it is fraudulent and void in law and fact. The chancellor in the court below held both deeds valid, and refused to grant complainants any relief in the way of personal judgments for their debts, or to set aside the conveyances and subject the property to sale. Murray Dibbrell & Co. filed a cross bill, seeking to enforce their rights under both the general and the special assignment. Complainants in the original bills appealed, and have assigned errors.

This case has been considered by the court of chancery appeals where it was conceded that error had been committed in not giving the personal judgments asked for, and the controversy has narrowed down to the question as to whether the conveyances are valid upon their face, or are invalid and void. The court of chancery appeals held the conveyance which purported to be a general assignment invalid, and the special deed of trust for the benefit of Murray Dibbrell & Co. void, and reversed the decree of the chancellor, gave personal judgments for the debts sued on, and ordered the attached property sold, and proceeds as well as funds in the receiver's hands applied according to the priorities of the different attachments, and remanded the cause for the execution of the decree. From this decree of the court of chancery appeals, defendant Brier and Murray Dibbrell & Co. have appealed to this court.

It is not contended that the assignment first mentioned is a special one, but the contention is that it is general and in substantial compliance with Acts 1881, c. 121. ^[1] The conveyance has no separate inventory attached, but contains in its body a list of accounts, judgments, notes on various persons, a storehouse and the stock of goods in it, conveyed subject to the special mortgage given to Murray Dibbrell & Co., and subject to the homestead right. It recites the names of persons to whom debts are owing and the amounts said to be due, and further states that the conveyance is for the benefit of all creditors named and any others who may have been overlooked in making out the inventory hereto attached. The deed is signed by Brier and wife, and there follows an affidavit as follows: "State of Tennessee, Fentress County. Comes H. D. Brier and makes oath in due form of law that the facts set forth in the foregoing inventory are true. [Signed] Hubert D. Brier. Sworn to before me April 13th. Stephen Lake." An impression of a seal appears, with this inscription: "Fentress County, Tennessee. Stephen Lake, Notary Public." There is no other attempt at an inventory than as appears in the body of the instrument, and there is no statement in the instrument that all the grantor's property is covered and conveyed by the deed, nor that there is a full and complete inventory or schedule of the same, the only statement looking in this direction being a preamble to the conveyance, reciting that the grantor is desirous to assign his stock in trade and property in general for the benefit of his creditors. It will be seen that the oath is simply to the effect that the facts set forth in the inventory are correct, but it is even left in doubt what the grantor means by this language, as he refers to...