Hughes v. Ellison

• Decision Date: 30 September 1838
• Citation: 5 Mo. 463
• Parties: HUGHES v. ELLISON.
• Court: Missouri Supreme Court

5 Mo. 463

HUGHES

v.ELLISON.

Supreme Court of Missouri.

September Term, 1838.

ERROR FROM THE CIRCUIT COURT OF COOPER COUNTY.

J. WILSON, for Plaintiff in Error. Hughes assigns for error: 1. That the court below erred in excluding as evidence from the jury the instrument of assignment read as evidence in this cause. 2. The court below erred in refusing to grant a new trial, both of which involves the same point--that is, whether the instrument of assignment is void upon its face. It is contended by the plaintiff, which was denied by the court below, that one partner has a right to make a general assignment of all the goods and chattels, &c., of the firm. 3 Mo. R. 252; 3 Kent's Com. 20, 25; Gow on Partnership, 95; Hodges v. Harris, 6 Pickering's Rep. 362. Admitting that one partner has no right to make an assignment in the name of the firm, still the partner executing the instrument of assignment, is individually bound by his own act. Gow on Partnership, 94; Green v. Beals, 2 C. R. 254.

HAYDEN, for Defendant in Error. The counsel for Ellison will insist upon the following points: 1. That the partner, Dobbyns had no right or power, as partner of McCune, to make the instrument of assignment, so as to invest the partnership property in Hughes, and that therefore the assignment is void. 2. That if he had power to transfer his own interest, as partner, to Hughes, yet by doing so, Hughes was thereby substituted in the partnership interest of Dobbyns with McCune, and had no separate interest in the partnership effects, and could neither sue for the goods attached alone, nor interplead in the attachment upon the same principles. 3. The instrument of assignment, upon its face is fraudulent and void per se.

TOMPKINS, J.

Ellison sued Dobbyns & McCune before ajustice of the peace, and procured an attachment to be issued against their property. Harvey J. Hughes, claiming the attached property as his own, interpleaded in the cause under the 2d section of the 2d article of an act suplementary to an act, entitled “An act to provide for the recovery of debts by attachment,” approved February 6th, 1837. Ellison denying his right to the attached property, an issue was made upon the interpleader, and that issue being found for Ellison, he had judgment before the justice. Hughes appealed to the Circuit Court, where judgment being again rendered against him, he moved for a new trial; and his motion being overruled, he comes into this court by writ of error to reverse the judgment of the Circuit Court. The bill of exceptions shows that on the trial of the cause Hughes read in evidence a deed of trust made by Dobbyns on behalf of himself and McCune, his partner in trade, by which deed were conveyed to Hughes all the goods, property and effects, &c., of said Dobbyns & McCune, in trust to be by him disposed of, and out of the proceeds thereof to pay, first, all necessary expenses; secondly, all those creditors, in just proportions, who shall within sixty days become parties to the said deed; and thirdly, if any be left after paying all the demands of those who might within sixty days assent to and execute said deed, to appropriate it to the payment of the demands of the remainder of his creditors. By the terms of the deed, the creditors who become parties to it, released Dobbyns & McCune, in consideration of the dividend, from all further demands and claims, whether the same were due or not at the time of the execution of the deed.

No person can doubt of the right, in the abstract, of any debtor to prefer any one creditor to another by paying his claim either in money or property; the only restriction imposed by our laws on this right, is that imposed by the act for the relief of insolvent debtors. The petitioning debtor, in order to obtain the benefit of the act, must, among other things prescribed by the act to be done, swear that he has not paid, &c. or in any way compounded with any of his creditors with a view, fraudulently, to obtain the benefit of the act. The same act, in the 30th section, provides a summary mode of proceeding against any petitioning debtor who “hath assigned, conveyed or delivered any of his debts, rights or credits to any other person, with intent of taking the benefit of the act, or who hath given an undue preference to any creditor, &c. The debtor who may be guilty of the acts above mentioned as prohibited, loses the benefit of the act. In the present case the deed was executed at St. Louis, for a nominal consideration, to a man who is a mere agent of the makers of the deed, and the property granted by the deed was in Boonville, two hundred miles distant. Between the time of the execution of the deed of trust and that of the arrival of the trustee from St. Louis in Boonville, to take possession of the goods conveyed in the deed of trust, the attachment was issued and levied on a part of the goods. It is unnecessary, therefore, for this...