McLin v. Wheeler

• Decision Date: 30 September 1858
• Citation: 37 Tenn. 687
• Parties: McLIN & HENRY v. J. M. WHEELER et al.
• Court: Tennessee Supreme Court

37 Tenn. 687

McLIN & HENRY

v.J. M. WHEELER et al.

Supreme Court of Tennessee.

September Term, 1858.

FROM MONROE.

This was a bill and cross-bill filed in chancery at Madisonville for the purposes stated in the opinion. At the June Term, 1858, Chancellor Van Dyke gave a decree for Wheeler et al., from which McLin & Henry appealed.

Brown and Cooke, for McLin & Henry; Trewhitt and Jarnagin, for Wheeler et al.

Wright, J., delivered the opinion of the court.

This is a contest between various creditors of Lewis Carter, as to which shall have priority of payment out of a fund amounting to $1,036.55.

The complainants, McLin & Henry, are attaching creditors of Carter, founding their claim on judgments and executions, with returns of “nulla bona.”

The defendants, Johnson Bell & Co., and J. M. Wheeler, were creditors of Carter, by notes, and claim that this fund or a sufficient amount of it to pay them, was assigned and appropriated in the hands of the East Tennessee and Georgia Railroad Company, to pay their debts, before McLin & Henry filed their bill. Carter had done work for this company, and it owed him, on settlement, the amount of this fund. And it appears, that before the amount due him had been ascertained, he drew orders on R. C. Jackson, who was, at the time, the treasurer of the company, in favor of Johnson, Bell & Co., and Wheeler, for the amount of their respective debts; and that these orders with the notes held by these creditors, were carried to Jackson, the treasurer of the company, and that he verbally agreed to pay them out of what might be due Carter on settlement, and agreed with the creditors to hold the fund for that purpose, then took and held the orders and notes as their agents, to get the money for them. It is further manifest, that though the orders appeared, on their face, to be upon Jackson, individually, yet they were, in fact, intended to be upon him as treasurer, to reach the fund due Carter, in the hands of the company; and were so regarded by all parties, and were so treated by the company. Its answer shows this, and submits that Johnson, Bell & Co., and Wheeler, are entitled to priority in the fund. All these rights attached before McLin & Henry filed their bill. The chancellor decreed that Johnson, Bell & Co., and Wheeler, were entitled to priority of payment out of the fund. This decree is right, and we affirm it.

There can be no doubt on the facts of the case, that they are entitled to this priority, and...