Gable v. Williams
| Decision Date | 13 July 1882 |
| Citation | 59 Md. 46 |
| Parties | JAMES H. GABLE, Trustee, &c. v. E. CALVIN WILLIAMS, JOHN HENRY KEENE, JR. and LUTHER M. REYNOLDS, Receivers, & c., et al. JAMES H. GABLE, Trustee, &c. v. SAME. HENRY A. GABLE v. SAME. |
| Court | Maryland Court of Appeals |
James H. Gable, for the appellants.
Isidor Rayner, and Thomas R. Clendinen, for the appellees.
The firm of Gable and Beacham was dissolved early in January 1881, by the death of Beacham. The business appears to have been carried on by Gable, the surviving partner, in the firm name, until about the 10th of April following. It is charged that the firm was actually insolvent at the time of its dissolution; and it is quite apparent that the surviving partner regarded himself as insolvent on the 11th of April 1881, for on that day he made a general deed of assignment of all his property, as well that held by him as surviving partner, as that held as his own separate estate, to two trustees for the benefit of his creditors. It is apparent also that there was quite a large amount of debts due from the late firm of Gable and Beacham at the time of making such general assignment.
Soon after the making of this deed of assignment, several bills in equity were filed by creditors of the firm, and by parties interested in the settlement of the partnership affairs, against the trustees, and Henry A. Gable, the surviving partner, praying the appointment of receivers; and in that filed by McComas & Welsh, and Ryland & Brooks, an injunction was also prayed, to stay the sale and disposition of the property of the late firm, which the trustees claimed had passed to them by virtue of the deed of trust. The bill charged that the partnership assets were largely insufficient to pay the firm debts; that they had been used and misapplied by Gable, the surviving partner, with full knowledge of the insolvency of the concern, and in total disregard of the rights of the partnership creditors; and that he had attempted to assign all the remaining partnership property for the benefit of his creditors generally, regardless of the prior and superior rights of the creditors of the firm, as against the partnership assets, to the claims of the separate creditors of the surviving partner. The bill charged that the deed of assignment was intended to hinder and delay the partnership creditors, and was therefore fraudulent as against them, and that, for matter apparent upon its face, it is absolutely void.
On this bill an injunction was granted; and on a subsequent day, after answer by the defendants, and upon hearing, receivers were appointed. This was done by an order of the 13th of May, 1881. With this order the Court below filed an opinion in which the deed of assignment of the 11th of April, 1881, was declared to be null and void, notwithstanding the attempted change or modification of the declaration of the trusts therein, by the so-called confirmatory and declaratory deed of the 16th of April, 1881. Upon filing this opinion and order of the 13th of May, three other cases seeking the interposition of the Court for the settlement of the partnership affairs of Gable and Beacham, were, by agreement of all the parties concerned, and by the order of the Court thereon, consolidated with the case in which the injunction had been granted, and the receivers appointed. And upon so consolidating the cases, a petition was filed by the receivers, asking that certain property which the firm of Gable and Beacham had acquired from Wilson and Hunting, and upon which there was a balance of $21,000 still due to the vendors, who held the legal title thereto, might be sold; and they also asked that Mr. Reynolds, the attorney representing the interest of Wilson and Hunting, be appointed an additional receiver with themselves. Upon this petition it was agreed by all parties concerned, including the present appellants, that a decree should be passed by the Court, establishing the claim of Wilson and Hunting as a lien upon the property mentioned in the petition, and that such property should be decreed to be sold by Messrs. Keene, Williams and Reynolds, as receivers, for the purpose of paying the claim of Wilson and Hunting, and of realizing the additional value of the property for the partnership fund. And the Court thereupon, on the 16th of May, 1881, passed its decree, reciting that the cause stood ready for hearing; that it had been duly submitted, and that all the proceedings, including the agreement, had been read and considered by the Court. By this decree, the claim of Wilson and Hunting was fully established, according to the agreement of the parties, and Messrs. Keene, Williams and Reynolds were appointed receivers, "in lieu of the receivers theretofore appointed by the Court;" and the Court then proceeded to decree, that not only the property acquired by Gable and Beacham from Wilson and Hunting, but that all other real or leasehold property mentioned in the proceedings, or belonging to the firm of Gable and Beacham, should be sold by the receivers so appointed. The decree provides, that upon sale of the property authorized to be sold, and full payment of the purchase money, the receivers should convey, by good and sufficient deeds, title to the purchasers. It directs that the purchase money be brought into Court, to be subject to future order; and in conclusion it provides that the previous order of the 13th of May, 1881, appointing the first two receivers, should be, and was thereby, rescinded, and the last decree taken as a substitute therefor.
It is from this last decree, and also the previous order of the 12th of May, 1881, that James H. Gable, one of the trustees in the deed of the 11th of April, 1881, and Henry A. Gable, the surviving partner of Gable and Beacham, have entered separate appeals. They have also taken separate appeals from an order of the 23rd of March, 1882, overruling a motion to dissolve the injunction granted on the 6th of May, 1882.
1. As to the appeal from the order of the 13th of May, 1881 appointing receivers, all that need be said in regard to that is, that the order has, by the subsequent decree, been rescinded. It is, therefore, no longer a subsisting order, and was not at the time of the appeal entered; and,...
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