Gregg v. Sloan

• Decision Date: 13 July 1882
• Citation: 76 Va. 497
• Parties: GREGG v. SLOAN ET ALS.
• Court: Virginia Supreme Court

76 Va. 497

GREGG v. SLOAN ET ALS.

Supreme Court of Appeals of Virginia.

July 13, 1882

Appeal from decree of circuit court of Patrick county, in three suits heard together. In first, Mary D. Gregg was plaintiff and Wilson & Shober, of North Carolina, and their Virginia debtors, Staples, Woolwine, Brown and Penn, were defendants. Its object was to collect debt due plaintiff by attaching money due the non-residents from their Virginia debtors. In second, S.D. Peeler was plaintiff, and same persons were defendants; and its object was the same. In third, Sloan, Bowman and F. E. Shober were plaintiffs, and Mary D. Gregg and the parties to the two other suits, and A M. Lybrook, commissioner to sell the land whereon the ehoses in action were secured, were defendants. These plaintiffs were trustees in trust deed executed by Wilson & Shober, conveying all their property including those choses in action, for benefit of their creditors. That deed was recorded in North Carolina before, and in Virginia after the attachment of Mary D. Gregg was levied. The object of the last suit was to enjoin and set aside a decree in first suit, directing payment of Mary D. Gregg's entire debt out of the land whereon the choses attached were secured, and to assert the priority of the trustees' claim thereto through the trust deed over the attachment.

The circuit court set aside the decree, and awarded priority to the trustees. From its decree, Mary D. Gregg obtained an appeal to this court. The remaining facts are fully stated in the opinion of the court.

A M. Lybrook, for the appellant.

J. L. Moore and A. A. Phlegar, for the appellees.

OPINION

BURKS, J.

The case upon the merits is, in substance, this--Wilson & Shober, residents of North Carolina, conveyed their property to Sloan and others in trust to secure the payment of their debts. The property conveyed included choses in action described in general terms, the evidences of which were delivered to the trustees at the date of the deed. One Nicholas Brown, among others, owed them a debt of considerable amount, and the terms of assignment in the deed were broad enough to cover and did cover this claim. The debt was secured by a deed of trust given by Brown on a tract of land in Virginia, and the assignment of the debt to Sloan and his co-trustees carried with it, by operation of law as an incident, the security of Brown's trust deed. McClintic v. Wise's Adm'r and others, 25 Gratt. 448; Grubbs v. Wysors, 32 Gratt. 127, 131.

Mrs. Gregg (the appellant here) by bill in chancery attached (among other subjects) the debt of Brown to Wilson & Shober, and ostensibly the land which had been conveyed as aforesaid to secure it.

The deed of Wilson & Shober to Sloan and others, trustees, though recorded in North Carolina before Mrs. Gregg instituted her suit, was not duly admitted to record in Virginia until after the attachment was levied. Upon this state of facts, the main question in the case on the merits is, whether the attachment, or the Wilson & Shober deed of trust gives the prior and superior lien on the Brown debt with its security.

The circuit court, by its decree, decided that the deed of trust was entitled to priority, and we think the decision is plainly right. The assignment by the deed was prior to the institution of the suit by Mrs. Gregg, and consequently to the levy of her attachment, and under the law, the attaching creditor takes his debtor's estate or interest only, and in the same plight and condition in which the debtor holds it when the attachment takes effect as a lien. Williamson v. Gayle and others, 7 Gratt. 152, 154.

Now, before Mrs. Gregg levied her attachment on the Brown debt and its security, Wilson & Shober had assigned the debt, and the law transferred the security to Sloan and his co-trustees. These trustees and the beneficiaries under the deed of assignment stand in the attitude of purchasers for value. This general proposition has been often decided by this court. See Williams and others v. Lord & Robinson and others, 75 Va. Rep. (1 Matthews), 390, 404, and cases there cited. The only interest of Wilson & Shober, at the date of the levy of the attachment, was the equity of redemption under the trust deed; that is, the surplus, if any, after the secured debts were paid. The levy bound that interest and nothing more.

The rights of the trustees were not affected by our recording acts. For it has been expressly decided by this court that those acts do not embrace assignments of choses in action, whether such assignments be special or general as by deed of trust. Kirkland, Chase & Co. v. Brune and others, 31 Gratt. 126.

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