Hefner v. Metcalf
| Decision Date | 31 December 1858 |
| Citation | 38 Tenn. 577 |
| Parties | JOHN P. HEFNER v. LEWIS METCALF. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM FRANKLIN.
At the July term, 1858. Marchbanks, J., rendered judgment for the plaintiff, on the agreed case. The defendant appealed.Colyar, for the plaintiff in error; Turney and Estill, for the defendant in error.
A. Jordan, on the 23d of December, 1857, being largely indebted, and having on hands, as a merchant, a stock of goods of the value of upwards of $5,000, made an assignment of the same, on that day, to Lewis Metcalf, as trustee, for the benefit of specified creditors. The defendant, as a constable, held sundry executions, issued by justices of the peace, against Jordan; some on judgments rendered before, and others after the date of the deed of trust, amounting, in the aggregate, perhaps, to the full value of the goods. Many of these, if not all, are embraced in the deed; but there is a discrimination against some or all of those who had sued, in case of a deficiency. The trust was to be closed during the next year, and the goods to be sold for cash, by Jordan, as agent of the trustee, or otherwise, for the purposes of the trust.
Upon the validity of this deed a dispute arose between the officer and the trustee, and an agreed case was made up by them, under the statute on that subject, and submitted to the Circuit Court. The decision was in favor of the deed.
The argument here, in favor of reversal, is based upon this statement in the case agreed:
“It is agreed that the object of making said deed of trust was to prevent such of his creditors, who were about to sue, or might sue said Jordan, from sacrificing his goods, by sale, when he desired that his goods should not be left to a race of diligence among or between his creditors; but he desired that he should have the opportunity, through his trustee, of selling the goods, as provided in said deed, and of distributing the funds rateably, as therein provided.”
There is nothing in the deed itself, no defect in its provisions upon its face, which are assailed in the argument. As no question is made upon that, its provisions need not be noticed. There is no doubt about the debts set forth being real, or that there is an excess of property, or any other of the common badges of fraud, palpable in the deed.
But the objects and purposes of it, as admitted in the agreement, are the grounds of attack. It is insisted, that to make an assignment to prevent the “sacrificing of his goods by sale,” to be made by his creditors, or to protect them from a “race of diligence among his creditors,” is equivalent to the words of the statute of frauds, “made to hinder and delay creditors.” We are referred to Burrell on Assignments, 391, and some reported cases cited by him in a note, to sustain this position. The statutes of frauds of the...
To continue reading
Request your trial
-
In re Coleman
...or delay-not such as is reasonable and fair in the exercise of the well established right to prefer creditors." Hefner v. Metcalf, 38 Tenn. 577, 1858 WL 2963 at *2 (1858). In Tennessee, as in Virginia, it is necessary to avoid a fraudulent conveyance to establish that the grantee was appris......
-
In re Bicknell
...as used in the statute are to be taken in their legal or technical, as distinguished from their merely literal, sense. Hefner v. Metcalf, 1 Head 577, 38 Tenn. 577. And it has long been recognized that certain conveyances of an insolvent debtor's property are unassailable though their conseq......
-
United States v. Kerr, CIV-2-77-110.
...or delay — not such as is reasonable and fair in the exercise of the well-established right to prefer creditors. * * *" Hefner v. Metcalf (1858), 38 Tenn. 577, 580. Of course, we have no factual situation herein involving preferential treatment of creditors, but a federal judge, in instruct......
- Thompson v. Jones