Finley v. Moore

• Decision Date: 23 May 1899
• Citation: 33 S.E. 362,55 S.C. 195
• Court: South Carolina Supreme Court
• Parties: FINLEY. v. MOORE et al.

33 S.E. 362

55 S.C. 195

FINLEY.

v.MOORE et al.

Supreme Court of South Carolina.

May 23, 1899.

ASSIGNMENTS FOR BENEFIT OF CREDITORS— UNLAWFUL, PREFERENCES.

A conveyance by an insolvent, in pursuance of a parol trust entered into before the insolvency, whereby the insolvent took title to land for which another paid half of the price, with the understanding that they should hold as tenants in common in equal shares, until a deed should be requested by the latter, is not within Rev. St. § 2147, making void a deed executed by an insolvent debtor to his creditor, with a view to give an unlawful preference, where made within 90 days before a general assignment, since the insolvent had the right to waive the statute of frauds, and did so by executing such conveyance.

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

Action by D. E. Finley, as receiver, against Walter B. Moore and another. From a judgment for defendant Moore, plaintiff appeals. Affirmed.

W. B. McCaw, for appellant.

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

JONES, J. Appellant seeks to set aside, as void under the assignment act (section 2147, Rev. St.), a deed by defendant Cartwright to defendant Moore of an undivided half interest in a lot within the corporate limits of Yorkville, on the ground that said deed was executed by an insolvent debtor to his creditor, who had knowledge of the debtor's insolvency, with a view to give an unlawful preference, and within 90 days previous to the making of an assignment for the benefit of creditors. The facts found by the circuit judge are as follows: "The said deed was made under the following circumstances: Just prior to October 5, 1893, the defendants verbally agreed that the land described in the deed and in the complaint should be purchased by them, as tenants In common in equal shares, for the sum of five hundred and seventy-five dollars, but with the understanding between them that the conveyance should be to the defendant A. Y. Cartwright, and held until such a time as a deed might be requested." The purchase money was evidenced by a note for $575, dated October 5, 1893, payable January 1, 1894, by A. Y. Cartwright to Margaret Ann McElwee and Sal-lie E. Faulkner, the payment of which was guarantied by the defendant W. B. Moore and J. H. Riddle; the latter being informed of the real relation between the defendants touching the purchase, as found by the court. "On the day named the deed was made accordingly, neither the grantors nor the creditors having any knowledge of this agreement At...