Finley v. Cartwright

• Citation: 55 S.C. 198,33 S.E. 359
• Court: United States State Supreme Court of South Carolina
• Decision Date: 23 May 1899
• Parties: FINLEY. v. CARTWRIGHT et al.

33 S.E. 359
55 S.C. 198

FINLEY.
v.
CARTWRIGHT et al.

Supreme Court of South Carolina.

May 23, 1899.

ASSIGNMENTS FOR BENEFIT OF CREDITORS-PREFERENCES BEFORE ASSIGNMENT-VALIDITY—APPEAL—REVIEW OF FACTS IN EQUITY CASE.

1. An assignment by an insolvent to his wife of property exempt as a homestead, though made within 90 days of his general assignment for creditors, is not void as an unlawful preference, under Rev. St. § 2147.

2. In a case in equity, the supreme court may reverse a finding of fact of the lower court when

[33 S.E. 360]

the preponderance of the evidence is against the finding.

3. Rev. St. § 2147, making void a conveyance by an insolvent, with intent to give an unlawful preference, made within 90 days of the execution of an assignment for creditors, contemplates a valid deed of assignment.

Appeal from common pleas circuit court of York county; J. C. Klugh, Judge.

Action by D. E Finley, as receiver, against Carrie J. Cartwright and another. From a judgment for plaintiff, defendant Carrie J. Cartwright appeals. Reversed.

W. B. McCaw, for appellant.

Witherspoon & Spencer and Thos. F. McDow, for respondents.

JONES, J. The receiver of Cartwright & Co. and of the individuals composing that firm brings this action to set aside a conveyance of land by A. Y. Cartwright to his wife, Carrie J. Cartwright, on the ground that said conveyance is void under the assignment act (section 2015, Gen. St., appearing as section 2147, Rev. St.), because executed within 90 days previous to an assignment for the benefit of creditors by Cartwright & Co., and under circumstances forbidden by said act. The facts found by the circuit court are as follows: "On the 5th day of January, 1894, A. Y. Cartwright was insolvent, as was also the firm of A. Y. Cartwright & Co., of which he was a member. And that on said 5th day of January, 1894, being then and now a resident of this state, and the head of a family, he conveyed to Carrie J. Cartwright his wife, an undivided one-half interest in the town property embraced in the deed of Mrs. Mc-Elwee and Mrs. Faulkner to A. Y. Cartwright, dated October 5, 1893, which is the deed in this action sought to be avoided, and covering all the tangible property of A. Y. Cartwright. That on the 5th day of January, 1894, Mrs. Carrie J. Cartwright was a creditor of her husband, A. Y. Cartwright, and that the transaction between them on said date was had with a view to give Mrs. Carrie J. Cartwright a preference forbidden by law, and to the exclusion of his other creditors. That Mrs. Carrie J. Cartwright had reasonable cause to believe that her husband was insolvent at the time, and was in fact informed of his insolvency. That Mrs. Carrie J. Cartwright had reasonable cause to believe that the deed executed to her by her husband was executed in anticipation of executing the deed of assignment to Thomas F. McDow that was executed on February 1, 1894, and that such transaction was had in violation of, and in evasion of, the provision of chapter 72 of the General Statutes of South Carolina. That this transaction between husband and wife took place within ninety days before the execution of the deed of assignment to Thomas F. McDow on February 1, 1894, which said deed of assignment has been assailed and vacated as obnoxious to the provisions of the common law, the statute of Elizabeth, and the assignment law of this state, in the decree of this court, rendered by Judge Benet, dated August 28, 1895, from which, as before mentioned, there has been no appeal. On the 5th day of January, 1894, the total value of the property embraced in the deed of Margaret A. McElwee and Sallie E. Faulkner to A. Y. Cartwright I find to be the sum of two thousand two hundred dollars; a street having previously been opened through the property, which had been subdivided into building lots, of one hundred feet front, and of slightly varying depth, which said lots, or some of them, had...