Goldthwaite v. Janney

• Decision Date: 13 February 1894
• Parties: GOLDTHWAITE ET AL. v. JANNEY ET AL. (TWO CASES. ABRAHAM v. SAME.
• Court: Alabama Supreme Court

15 So. 560

102 Ala. 431

GOLDTHWAITE ET AL. v. JANNEY ET AL. (TWO CASES.

ABRAHAM v. SAME.

Supreme Court of Alabama

February 13, 1894

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Suits by Robert Goldthwaite and others against Janney & Cheney trustees, and by Adolph Abraham and others against the same parties. There were decrees for defendants, and plaintiffs appeal. Affirmed.

On July 6, 1891, the firm of Moses Bros., composed of H. C., A. H and M. L. Moses, made a general assignment to certain named trustees of all their property, for the benefit of their creditors. The trustees named in this general assignment filed a bill in the chancery court of Montgomery county praying that said court take jurisdiction of the matters relative to said assignment, and govern, control and direct the trustees, the property and interests of Moses Bros. and their creditors, as would best conserve equity to all parties. The chancellor granted the prayer of said bill, and took charge of the matters pertaining to said general assignment. Subsequently, on October 10, 1892, Adolph Abraham, Isaac Abraham and Rosa Abraham, the two last named by their next friend, filed their petition, addressed to the chancellor, in their own behalf, and in behalf of such other individual creditors of H. C., A. H. and M. L. Moses, as would come into the cause and share the expenses thereof, in which they averred that each one of them was a creditor of H. C., A. H. and M. L. Moses individually, setting out the amount of said indebtedness; that among the property which was conveyed by Moses Bros. in the deed of general assignment, was a large amount of private property, which was owned individually by the respective members of the firm; that "by the terms of said deed of trust, as well as by law, they and the other individual creditors of the said Henry C. Moses, A. H. Moses, and M. L. Moses are entitled to be paid the full amount of their claims out of the private property of the said H. C. Moses, A. H. Moses and M. L. Moses in priority to the creditors of Moses Bros.," and they prayed that "the private property of said Henry C. Moses, A. H. Moses and M. L. Moses be ascertained and the amount of claims which are entitled to priority therein be stated, such claims to be paid to the full extent of such property, and that the trustees be restrained from paying to the general creditors of the firm of Moses Bros. any portion of the proceeds of said property until said individual debts are paid in full." In response to this petition the chancellor ordered a reference to the register to ascertain and report to what property conveyed by the assignment the individual members of the firm of Moses Bros. held title, and to make a statement of the individual debts of the members of said firm. The substance of the evidence disclosed on the reference which was thus ordered, is sufficiently stated in the opinion. On the submission of this cause upon the report of the register, it was decreed that "all of the property, real and personal, assigned by the said A. H. Moses, H. C. Moses and M. L. Moses, constituting the firm of Moses Bros., for the benefit of their creditors, whether the title thereto stood at the time of said assignment in the name of said firm, or any part thereof, except the residences of the members of said firm, and the lot in Sheffield, Alabama, given to A. H. Moses by the Sheffield Land, Iron & Coal Company, constituted the assets of said partnership, to which the creditors of said firm are primarily entitled, and must be so regarded by the trustees administering said trusts in the distribution of said assigned property." On September 14, 1893, Robert Goldthwaite, as receiver, in the case of Paull v. Knox et al., by petition, made himself a party complainant in the petition of the Abrahams, and prayed for the benefit of the proceedings thereon in his behalf. The facts as stated in the petition of said Goldthwaite are substantially as follows: First, that the petitioner is the successor of H. C. Moses, as receiver in the case of Paull v. Knox et al.; second, that petitioner as said receiver is the owner of an allowed claim against the estate of H. C. Moses, individually, in the amount of $18,108.11; third, that said claim arose on account of trust funds in the hands of H. C. Moses, as said receiver, which he advanced to the firm of Moses Bros. of which firm he was a member, without taking the proper security required by a court; fourth, that Moses Bros. were indebted to H. C. Moses for said advances, at the time of the general assignment made by them, and the members of said firm are yet indebted to him for such amount; and fifth, that at the time of the assignment, the said H. C. Moses held the legal title to some real estate, which, in equity, belonged to said firm. The prayer of this petition was that "the proceeds accruing under said deed of assignment be directed and ordered to be regarded and held as property to which H. C. Moses held the legal title at the date of said assignment as the individual property of said Henry C. Moses, so far as petitioner's debt is concerned; and out of the proceeds thereof be declared dividends for the benefit of petitioner's said debt, until it is paid with other debts similarly situated." The ground upon which said Goldthwaite, in his petition, based his right to relief thus prayed for, is sufficiently stated in the opinion. The trustees, acting under the deed of general assignment, demurred to this petition, among others, upon the following grounds: That the said petition shows that the property in the name of H. C. Moses was partnership assets; that the petition fails to show that there has been any settlement of the affairs of said partnership, showing any indebtedness of the firm to said Henry C. Moses; that the petition shows that said property was partnership assets, and that H. C. Moses, together with other members of the firm, has assigned the same for the benefit of all of the creditors of said partnership. Upon the submission of this cause, upon the petition and the demurrers thereto, there was a decree sustaining the demurrers. This appeal is prosecuted by Robert Goldthwaite, as receiver, who assigns as error the decree of the chancellor sustaining the demurrers to his petition; and by the Abraham petitioners, who assign as error the decree of the chancellor denying them the relief prayed for.

Brickell, Semple & Gunter, for appellants.

Tompkins & Troy and Horace Stringfellow, for appellees.

HARALSON J.

The sole question for decision in this case, as respects the rights of the Abraham petitioners, is whether the property in question belonged to the individuals composing the firm of Moses Bros., or to the firm itself; and, Goldthwaite receiver, has, also, an equal interest in the determination of that question. It it was individual property, it must be distributed among the individual creditors of that insolvent firm; but, if in equity it belonged to the partnership, it is to be distributed, with the other property belonging to the firm, to its creditors. There was real estate, the title to which stood in the names of the individual members, and stocks standing on the books in the names of one or another of the individuals, schedules of which real estate and stocks are attached to the petitions. These lands and stocks were included in the general assignment of Moses Bros., and came into the possession of the appellees, as assignees, and they claim them as the property of said firm, subject to distribution among its creditors, and not to the creditors of the individuals composing the said firm, whereas, the petitioners claim said property as belonging...