Jones v. McQuien

• Decision Date: 27 November 1893
• Citation: 14 So. 146,71 Miss. 98
• Court: Mississippi Supreme Court
• Parties: WINSTON JONES ET AL. v. J. C. MCQUIEN

14 So. 146

71 Miss. 98

WINSTON JONES ET AL. v. J. C. MCQUIEN

Supreme Court of Mississippi

November 27, 1893

October 1893

FROM the circuit court of Noxubee county, HON. S. H. TERRAL Judge.

On January 8, 1890, A. M. Stoner, a merchant in Macon, Miss conveyed to J. C. McQuien, as assignee, for the benefit of creditors, certain property, described in the assignment as follows: "My entire stock of goods, wares and general merchandise in the store-house I now occupy in the Bush Block, in the town of Macon, in said county and state together with all store-furniture, safe now used in and about said store. And also all notes and accounts and books pertaining thereto." Certain debts were preferred. Immediately after the execution of the assignment, the appellants, Winston Jones & Co., unpreferred creditors of Stoner, sued out this attachment, and caused the stock of merchandise to be levied upon. The assignee, McQuien interposed a claim, and gave bond for the property. The trial of the attachment issue resulted in a verdict in favor of plaintiffs, who also recovered a judgment against defendant for the amount due them. At a subsequent term, the claimant's issue was tried, resulting in a verdict and judgment for claimant, and after the motion for new trial was overruled, plaintiffs appealed.

Much evidence was introduced by plaintiffs in the effort to show that the assignor owned certain real and personal property, which he had not conveyed in the assignment, but which he had conveyed to others by transfers alleged to be colorable. It was shown that the assignment was prepared by an attorney and signed by the assignor on the day preceding its delivery to the assignee. Among the debts preferred in the assignment was one for $ 500 to E. S. Ford, evidenced by a promissory note for that amount, and on which the wife of the assignor was surety. The assignment directed the assignee to pay this debt, giving it priority along with certain others listed in the assignment. After the assignment was prepared and signed, but before its delivery, Ford, the creditor, who was importunate in his demand for payment, succeeded in collecting from Mrs. Stoner, the surety, a part of his debt, and Stoner, under the advice of his attorney, paid the balance and took the note, which, with the assignment, he delivered to the assignee. At the same time he explained to the assignee the facts, and directed him to disregard the provision in the assignment as to the payment of that debt. However, the assignment was not rewritten or in any manner altered, the attorney having advised that this was not necessary. This, it was contended by plaintiff, rendered the assignment fraudulent as to creditors, in that it directed the payment of a fictitious debt. The foregoing statement sufficiently illustrates the only two questions specifically noticed in the opinion.

Affirmed.

A. C. Boyle, for appellants.

1. It is clearly shown that the note to Ford had been paid in full before the assignment was executed. The assignment took effect only from the day of its delivery. It matters not when it was prepared. Burrill on Assignments, § 296. The insertion of this fictitious debt rendered the assignment fraudulent as to creditors, Harmon v. Hoskins, 56 Miss. 142; Baum v. Pearce, 67 Ib., 700; Marks...