Johnson v. Dismukes
| Decision Date | 14 April 1913 |
| Docket Number | 2,436. |
| Citation | 204 F. 382 |
| Parties | JOHNSON v. DISMUKES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hatcher & Hatcher, of Columbus, Ga., and Atkinson & Born, of Atlanta Ga., for appellant.
Slade & Swift and Love & Fort, all of Columbus, Ga., for appellee.
Before PARDEE and SHELBY, Circuit Judges, and SHEPPARD, District judge.
This is an appeal from the District Court of the Northern District of Georgia affirming the finding of the referee on a state of facts very similar to that considered in the case of Lumpkin v. Foley, Trustee, 204 F. 372, at this term. About the only difference is stated in the opinion of the District Judge, and consists in the fact that in the Lumpkin Case the bankrupt, in addition to mortgaging its stock of goods in trade, transferred to the claimant, Lumpkin, all its choses in action, notes and accounts due it. In the instant case the bankrupt mortgaged to Johnson his stock of merchandise in trade, kept in different stores in the same city. Thweatt, the bankrupt, used all the proceeds of the loan from Johnson, $6,000, to pay his bank and kinsmen debts due them, which, however, had all matured.
Both the referee and judge below found from the evidence: That Thweatt, the bankrupt, was on the date of the transfer 'clearly insolvent,' and that the act of the transfer was to hinder, delay, and defraud his creditors. That the transaction was hastily consummated after Bowden, Johnson's attorney, made known Thweatt's present need for 'money in his business,' which appears from the testimony not to have been applied to the business. That Johnson, the claimant, was an entire stranger to Thweatt, and made no investigation of the value of the assets, except to take a glance look at the stocks in the two stores. He was not concerned as to whether the goods had been paid for-- it was 'none of his business'-- except to see that there were no liens of record. The referee and District Judge both say that the circumstances of the transaction were sufficient to put Johnson on inquiry, and investigation, if made, would have disclosed these 'undisputed facts': First, that it was Thweatt's purpose to use the money to pay two creditors only and 'to leave the others wholly unprovided for'; second, that Johnson's idea was that, if he did not know anything, he would be responsible for nothing. The judge approved the findings of the referee: First, that Thweatt was...
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...in fraud of the act: Parker v. Sherman, 212 F. 917 (C. C. A. 2d Circuit); In re Soforenko, 210 F. 562 (D. C. Mass.); Johnson v. Dismukes, 204 F. 382 (C. C. A. 5th Circuit); Lumpkin v. Foley, 204 F. 372 (C. C. A. 5th Circuit); In re Lynden Mercantile Co., 156 F. 713 (D. C. Wash.); Roberts v.......
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Picard v. Citibank, N.A. (In re Bernard L. Madoff Inv. Sec. LLC)
...led to sufficient knowledge of the facts to prevent the sale.") (emphasis added), aff'd 223 F. 536 (2d Cir. 1915) ; Johnson v. Dismukes , 204 F. 382, 382 (5th Cir. 1913) (affirming district court's avoidance of fraudulent transfer under the Bankruptcy Act of 1898 where "the facts and circum......
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Hertzmark v. Lynch, 2574.
...Court was clearly wrong in affirming his findings and order. Lumpkin v. Foley, supra (C. C. A.) 204 F. 372, pages 377, 378; Johnson v. Dismukes (C. C. A.) 204 F. 382; Houchin Sales Co. v. Angert (C. C. A.) 11 F.(2d) 115. A mortgagee with actual or imputed knowledge of such facts as the refe......
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Marshall v. Florida Nat. Bank of Jacksonville
...436, 53 L.Ed. 776, 16 Ann.Cas. 1008; Cf. Lovett v. Faircloth, 5 Cir., 10 F.2d 301; Lumpkin v. Foley, 5 Cir., 204 F. 372; Johnson v. Dismukes, 5 Cir., 204 F. 382. There is no merit in the contentions of the trustee. The evidence sustains the judgment of the court confirming the order of the ......