Mann v. Poole

• Decision Date: 06 January 1897
• Court: South Carolina Supreme Court
• Parties: MANN et al. v. POOLE et al.

26 S.E. 229

48 S.C. 154

MANN et al.

v.POOLE et al.

Supreme Court of South Carolina.

Jan. 6, 1897.

Creditors' Suit — Appeal — Judgment Liens — Attorneys' Fees—Rents—Commission's of Assignee for Benefit of Creditors—Interest— Compensation of Receiver.

1. The fact that one of a number of creditors; appealing from a provision of a decree giving a preference to the claim of another creditor, failed to serve his grounds of appeal on the appellee, cannot be taken advantage of by his co-appellants, after a reversal, and an order that the fund so released be distributed, to prevent him from sharing in such distribution.

2. Under a decree setting aside an assignment for the benefit of creditors, and providing that the proceeds of property sold by the assignee should be substituted for the property, the pro-ceeds of real estate remain subject to the liens of judgment creditors.

3. An assignee for the benefit of creditors sold realty of the assignor, taking back a mortgage, securing a part of the purchase money, containing a provision for the payment of attorneys' fees in case of its foreclosure. The assignment was afterwards set aside, and the assignee turned over the mortgage, with other assets, to a receiver, by whom it was foreclosed, the attorneys' fees collected being paid, with his consent, to the attorneys for their services. Held, that such fees were not a part of the debtor's estate, and the creditors could not complain that they were not distributed as part of the proceeds of the mortgage.

4. The rents from lands of a debtor in the hands of a receiver are not subject to the liens of judgments, but are to be distributed among the creditors generally.

5. Where compensation was allowed an assignee by decree of court for services rendered before the assignment was set aside, to be paid from the property, which was transferred to a receiver, the assignee is entitled to interest thereon from the date of the decree.

6. Under Rev. St. § 2145, fixing the compensation of an assignee at a commission on the amounts received and paid out by him, an assignee, who took a mortgage for the purchase money of property sold, which was foreclosed by a receiver after the assignment was set aside, is not entitled to commissions on the amount of such mortgage, nor on the amount received for the property when sold thereunder.

7. The amount of commissions to be allowed a receiver for his services rests in the discretion of the court.

8. Where a decree, setting aside an assignment for the benefit of creditors, and appointing a receiver for a debtor's property, required all creditors to come in and prove their claims before the clerk by a day fixed, under pain of being barred of all benefits under the decree on a failure to do so, it is error to allow a creditor whose claim was never presented nor established to participate in a subsequent distribution.

Appeal from common pleas circuit court of Laurens county; D. A. Townsend, Judge.

Action by J. & H. Mann & Co. against J. T. Poole and others, to set aside a general assignment made by Poole to N. B. Dial, and certain mortgages executed by Poole. The assignment and mortgages were set aside, a receiver appointed, and all creditors were required to come in and prove their claims. From a decree of distribution, Spragins, Buck & Co. and others, creditors, and the receiver, appeal. Modified.

The following is the decree:

"This case has been before the supreme court twice, and, under the ruling of that court, and the decree and orders made on circuit, the only open questions are of an administrative nature simply. These questions were argued before me at February term of court of common pleas for Laurens county, 1896. The first and most important question is, what disposition shall be made of the account ordered paid by Judge Watts to plaintiffs, which the supreme court reversed? I hold that this fund must be distributed among the creditors of J. T. Poole who appealed as to this preference to plaintiffs. The matter is res adjudicata as to those who did not appeal, and neither they nor the plaintiffs can participate in its dis tribution. The next question is as to the surplus proceeds of the Power mortgage. This, I hold, is personalty, and goes with the general fund, and should be distributed among creditors generally, —this to include the amount claimed as 10 per cent. attorney's fees for foreclosing the Power mortgage, as this claim is not allowed. The next question is as to the rents of the Spartanburg lands. These and all other rents must be included in the general fund. The next question is whether Mr. Dial is entitled to compensation for selling the Martin House and taking the Power mortgage to secure the purchase money. I think he should be compensated for his services, but I am precluded from doing so by the ruling of the supreme court. But he is entitled to interest on the amount allowed him from the date of Judge Watts' decree. The only remaining question is the compensation to be allowed H. W. Anderson as receiver. As to this, he is allowed 2 1/2 per cent. on all funds turned over to him by N. B. Dial, Esq., including the proceeds of sale of the Power mortgage, and 5 per cent. on the proceeds of all sales made by him and moneys collected by him, including the proceeds of sale of the choses in action in his hands uncollected, which he is authorized and directed to dispose of at public sale at such time as he may deem best for the interest of creditors. That upon compliance with the terms of this decree, and all other orders and decrees of force in this case, and filing with the clerk of this court a report of all receipts and disbursements in this case, H. W. Anderson, as receiver, be, and is hereby, discharged from the duties and liabilities of the trust reposed in him. Let the claim of $618.36 of H. B. Claflin & Co. participate in the distribution according to its rank. It should have been stated in this decree, in connection with the rights of appealing creditors, that no creditors appealed except those represented by N. B. Dial, Esq., F. P. McGowan, Esq., and W. H. Martin, Esq.; and they alone are entitled to the results."

The following are the grounds of appeal: In pursuance of their notice of intention to appeal, heretofore given herein, Spragins, Buck & Co.; A. G. Woodruff & Co.; S. Wittkowsky; Guggenheimer & Co.; M. H. Lauchheimer & Son; Gwin Harper Manufacturing Company; Holstein Woolen Company; H. W. Roundtree; Robinson, Boylston & McKeldin Company; Tapp, Leathers & Co.; E. W. Marsh and others; Nathan Rohr; Bates, Kingsberry & Co.; I. Whitehill & Son; James G. Johnson & Co.; Nonotuck Silk Company; Hamilton-Brown Shoe Company; Joel J. Bailey & Co.; Johnson, Omohundro & Co.; E. P. Reed & Co.; Walter H. Tenney & Co.; Alsop, Mosby & Co.; Stevenson, Alexander & Cator; McTeer, Payne, Hood & Co.; J. & H. Mann & Co., —creditors of J. T. Poole, and H. W. Anderson, as receiver of J. T. Poole, appeal to the supreme court from the decree of his honor, Judge D. A. Townsend, filed on the 18th day of May, A. D. 1896, on the following grounds and exceptions:

"(1) Because his honor erred in holding that the amount ordered paid by the decree of Judge Watts to plaintiffs should be distributed among the creditors of J. T. Poole who appealed from said decree in regard thereto, and that such appealing creditors were only those represented by N. B. Dial, Esq., F. P. McGowan, Esq., and W. H. Martin, Esq. (2) Because his honor erred in not holding that the judgment creditors above named, except J. & H. Mann & Co., appealed from the decree of Judge Watts giving plaintiffs a preference and directing that they be first paid out of the proceeds of the lands. (3) Because his honor erred in not holding that the supreme court had declared the judgment creditors entitled to the proceeds of the lands according to their legal priority, and in not directing the receiver to pay said judgment creditors, according to their rank, in preference to all other creditors. (4) Because, even if the amount ordered by Judge Watts to be paid the plaintiffs does not go to judgment creditors according to their priority, his honor erred in not allowing the said plaintiffs to participate in its distribution. (5) Because his honor erred in holding that 'the surplus proceeds of the Power mortgage' is personalty, and goes into the general fund, to be distributed among creditors generally. '(6) Because his honor erred in holding that the 10 per cent. attorney's fee should go into the general fund, and be distributed among the creditors generally, when, in fact, the receiver had nothing to do with said fees, but they were allowed the attorneys by a decree of foreclosure in another action, and paid them by the clerk of court, who made the sale under said decree. (7) Because his honor erred in holding that the rents of the Spartanburg lands must be included in the general fund, and in not holding that said rents are a part of the realty, and should go as the proceeds of said lands. (8) Because his honor erred in holding that N. B. Dial, Esq., is entitled to interest on the amount of compensation allowed him from the date of Judge Watts' decree. (9) Because his honor erred in holding that Receiver H. W. Anderson...