Joas v. Jordan
| Decision Date | 29 August 1907 |
| Citation | 113 N.W. 73,21 S.D. 379 |
| Parties | JOAS v. JORDAN et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Kingsbury County.
Action by Frank Joas against James F. Jordan, as trustee, for the benefit of creditors of Jacob C. Jacobson, and the Equitable Fidelity & Title Guaranty Company and Jacob C. Jacobson. From an order overruling its demurrer to the complaint, the Equitable Fidelity & Guaranty Company appeals. Reversed, with directions to sustain the demurrer.
Hall Lawrence & Roddle, for appellant.
A. R Abel and Warren & Warren, for respondent.
This is an appeal by the defendant Equitable Fidelity & Title Guaranty Company, a corporation, from an order overruling its demurrer to the plaintiff's complaint.
The action was instituted against the appellant Jacob C. Jacobson and James F. Jordan. The separate demurrer of Jacob C Jacobson was sustained. It appears from the abstract that the summons was served upon the appellant and upon Jacobson. The action is brought upon a bond executed by the appellant and the said Jordan on the 22d day of May, 1905. The complaint is quite lengthy, and the facts therein alleged may be briefly stated as follows: That this defendant and appellant is a corporation; that prior to the 24th day of March, 1905, the defendant Jacobson was engaged in business as a retail merchant at Arlington, Kingsbury county, in this state, and that said Jacobson was indebted to a number of creditors for goods, wares, and merchandise sold and delivered to him; that among these creditors was the plaintiff in this action; that in March, 1905, the said Jacobson made, executed, and delivered to the defendant James F. Jordan a trust deed conveying to the said Jordan, for the benefit of such creditors of said Jacobson as might agree to its conditions and accept the benefits thereunder, all his property, except that which is exempt from execution. This trust deed is set out in full, and provides, among other things, that the said Jacobson, party of the first part, in consideration of the premises, has granted, sold conveyed, and assigned, and does grant, sell, convey, and assign, to said Jordan, party of the second part, all and singular his lands and tenements, goods, chattels, and effects, claims, demands, and bills receivable, including books of accounts and other evidences of indebtedness, together with all collateral thereto belonging or pertaining thereto, except exempt property therein specified for the following uses and purposes: (1) To take possession of said property, and to sell and dispose of the same at public or private sale with all reasonable diligence and to convert the same into money; to collect all claims, demands, and bills receivable, or settle, compromise, and compound the same; (2) to pay and discharge all the just debts and reasonable expenses against, and charges of executing and carrying into effect, the trust thereby created; (3) to pay and discharge in full all the debts and liabilities due and owing by the said Jacobson to those of his creditors who shall become parties thereto and who shall in consideration of the premises undertake and agree upon payment made, whether in full or in part, to fully release, discharge, and absolve said Jacobson from all indebtedness to them or either of them, and, if the proceeds of said property shall not be sufficient to pay said debts, liabilities, and interest in full, then to apply the same, as far as they will extend, to the payment of said debts, and that after the payment as aforesaid, if there was any surplus, to repay the same to said Jacobson, and it is provided that the said Jordan as trustee may, if he shall deem it best, in order to convert the property assigned, continue the business for such time as he may deem it advantageous. Annexed to this agreement were the signatures of 34 creditors who accepted the terms of the same. It is further alleged that on the day of the execution of said trust deed said Jordan entered into and took possession of the said property, and disposed of the same under the provisions of said trust deed; that said Joas, one of the creditors of said Jacobson, refused to comply with the provisions of said trust deed or to be bound by the provisions therein; that on the 18th day of April, 1905, the claim of the said plaintiff was placed in judgment, execution issued thereon, and placed in the hands of the sheriff, with instructions to levy the execution upon the property of the said Jacobson so assigned by him...
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