Curry v. McCauley
| Decision Date | 23 May 1884 |
| Citation | 20 F. 583 |
| Parties | CURRY and another, Assignees, etc., v. McCAULEY and others. |
| Court | U.S. District Court — Western District of Pennsylvania |
Geo. M Reade and Geo. Shiras, Jr., for appellants.
B. L Hewitt and S. Schoyer, Jr., for Mrs. Freed.
Several distinct causes of complaint are conglomerated in this bill (1) It is alleged that McCauley and Baker, two of the respondents, were sureties of the bankrupt in a bond given to Dr. Alexander Johnston, the executors of whose will transferred the same to his daughter, Mrs. Jane Freed; that some time after the execution of this bond the bankrupt executed and delivered to McCauley & Baker a mortgage upon the real estate described therein to indemnify them as his sureties in said bond; that the said mortgage was a fraudulent preference, and therefore praying that it be so declared, and ordered to be given up to be canceled. (2) It is further alleged that Mrs. Freed, being the owner of the bond aforesaid, and beneficially secured by the said mortgage, made proof of said bond as an unsecured claim against the bankrupt's estate, and presented the same as such at a general meeting of the bankrupt's creditors and therefore praying that the proof of her claim be expunged, and she be excluded from participating in the distribution of the bankrupt's estate unless she shall renounce 'all present and future claims and title to any benefit and advantage to be derived from said mortgage whatsoever.' (3) And it is further alleged that John Lloyd entered into the possession and enjoyment of the mortgaged premises; and praying that an account be taken of the rents and profits of said premises during the period of his occupancy thereof.
Objectionable as this bill is, then, on account of its blending matters of independent and incongruous character, it has been fully discussed upon its merits, and hence it is not improper to consider and dispose of it in that aspect. The mortgage referred to in the bill was given to indemnify the mortgagees, as the sureties of the mortgagor, in a bond executed and delivered to Dr. Alexander Johnston on the first of May, 1874. It was therefore founded upon a legal and sufficient consideration, and, if assailable at all, it can only be for constructive fraud as a preference forbidden by the bankrupt law. The mortgage is dated May 8, 1875, and was recorded on the seventeenth of September, 1875; and although the bill alleges that it was antedated and was withheld from record in pursuance of a secret and unlawful agreement to that effect, yet these allegations are unsupported by sufficient proof. Hence, the point of time with reference to which the validity of the mortgage is to be determined is the eighth of May, 1875. But the bankruptcy proceedings were not commenced until November 11, 1875, so that the statutory limitation of two months within which the giving of a preference is forbidden had elapsed, and the mortgage was not open to question.
It is however, urged that, as the mortgage was withheld from record until within two months from the filing of the petition in bankruptcy, the...
To continue reading
Request your trial
-
First National Bank of Mauch Chunk v. Rohrer
... ... 221; Fulsom v. Clemmons, 11 ... Mass. 277; Stewart v. Hopkins, 30 Ohio St. 29; ... Thompson v. Pearson, 29 N.J.Eq. 487; Curry v ... Macaulay, 20 F. 583 (distinguishing Blennerhassett ... v. Sherman, 105 U.S. 100); Wait on Fraudulent Con. & Cred.'s Bills, 235. (2) The ... ...
-
In re Adams
... ... months prior thereto, was held not to be fraudulent on ... account of failure to be recorded. Curry v. McCauley ... (C.C.) 20 F. 583. Under the state law, the mortgage was ... and is void against the creditors who became such between the ... ...
-
In re McIntosh
... ... Rogers v. Page, ... supra, and cases there cited. See, also, Blennerhasset v ... Sherman, 105 U.S. 118, 26 L.Ed. 1080; Curry v ... McCauley (C.C.) 20 F. 583; Smith v. Craft ... (C.C.) 17 F. 705; Stephens v. Sherman, Fed. Cas ... No. 13,369a ... Nor are ... ...
-
Dravo v. Fabel
... ... bankruptcy, it is immaterial whether it is recorded or not ... Mellon's Appeal, 32 Pa.St. 121; Curry v ... McCauley, 11 F. 365; S.C. 20 F. 583. Here there is no ... evidence whatever of any agreement or understanding that the ... deeds should be ... ...