Middleton v. Taber

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: McIVER
• Citation: 46 S.C. 337,24 S.E. 282
• Decision Date: 20 March 1896
• Parties: MIDDLETON et al. v. TABER et al.

24 S.E. 282
46 S.C. 337)

MIDDLETON et al.
v.
TABER et al.

Supreme Court of South Carolina.

March 20, 1896.

Supreme Court—Jurisdiction—Assignment for Creditors—Construction of Deed—Preferences—Receiver—Appointment.

1. When Const. 1895 went into effect, the supreme court consisted of a chief justice and two associate justices, two of whom constituted a quorum. Const. 1895, art. 5, §§ 2, 3, provided, as in the constitution of 1868, that "the judicial power of this state shall be vested in a supreme court, " which should consist of one chief justice and three associate justices; that three of them should constitute a quorum; that the three judges then in office should continue in office; and that the third associate should be elected by the general assembly at its next session. Article 17, § 11, subd. 3, repealed all laws except those expressly "ordained or declared herein, " inconsistent with the constitution, but excepted these inconsistent with provisions which required legislation to enforce them until such legislation was had. Held, that a new tribunal was not created, and that the supreme court continued as before till the general assembly elected the additional associate justice.

2. A deed of assignment conveying, by the granting clause, "all the property" of the grantors to an assignee, "his heirs, executors, and assigns, " for benefit of all creditors, and appointing the assignee their attorney, with full power to execute and complete the trust, conveys the fee to the assignee, though there is no habendum clause in the deed.

3. A deed of assignment admitted by the grantors to have been executed by them individually and as partners recited that two persons, naming them, comprising a certain partnership, being unable to pay "their" debts, and desiring to provide for payment of the "same" by assignment of all "their" property, partnership and individual, without preference, except to releasing creditors of the "parties of the first part." conveyed such property to an assignee, to pay all creditors of the "parties of the first part" who released, and all other of "said creditors" without preference. Held, that the deed was void as preferring partnership creditors, since it conveyed all the individual property, without providing for the payment of individual creditors.

4. A deed of assignment containing an illegal preference cannot be rendered valid by an assurance of the assignee and the agent of the creditors that the property will be distributed according to law.

5. In an action by a judgment creditor of assignors against the assignors, the assignee, and the agent of the creditors, to set aside a deed of assignment, plaintiff is not entitled to have a receiver appointed on the assignment being declared void.

Appeal from common pleas circuit court of Orangeburg county, R. C. Watts, Judge.

Action by Middleton & Ravenel against Taber & Willard and others to have a deed of assignment declared void, to enjoin the assignee and creditors' agent from acting under it, and for the appointment of a receiver. From a judgment for plaintiffs, defendants appeal. Reversed as to appointment of receiver.

The following is a copy of the deed of assignment:-

"The State of South Carolina, County of Orangeburg. This indenture, made this nineteenth day of January, A. D. 1895, between Albert R. Taber and George W. Willard, partners in trade, doing business in the town of Fort Motte, in the county and state aforesaid, under the style of Taber & Willard. of the first part, and R. Goodwyn Murray, of the said county and state, of the second part, witnesseth: That the parties of the first part, being indebted to divers persons in various sums of money, and unable to pay their debts in full, but desiring to provide for the payment of the same by an assignment of all their property belonging to them as such copartners and as individuals, for the benefit of all their creditors, without preference or priority of any kind whatsoever, save only as to such of the creditors of the parties of the first part as shall accept the terms of this assignment, and execute a release in writing of their respective claims against the said parties of the first part, for and in consideration of the sum of one dollar to each of the said parties of the first part in hand paid by the party of the second part at and before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged), and of the trust herein reposed, have granted, bargained, sold, assigned, conveyed, transferred, released, and set over, and by these presents doth grant, bargain, sell, assign, transfer, release, and set over, all their copartnership and individual property, both real and personal, of whatsoever the same may consist, and wheresoever situate, including all and singular the lands, tenements, hereditaments, and appurtenances, goods, merchandise, chattels, stocks and notes, choses in action, debts, evidences of debts, claims, demands, property, and effects, of every kind and description whatsoever (save and except only such property, real and personal, as is by law exempt from execution, levy, and sale), unto the said party of the second part, his heirs, executors, administrators, and assigns, in trust, however, as assignee for the benefit of the creditors of the said parties of the first part, to the end that the said R. Goodwyn Murray, assignee, shall take immediate possession of the said property, and convert the same into money by public or private sale, with reasonable diligence and dispatch, and to collect such debts, choses in action, and demands hereby assigned as may be collectible, with the right to compromise such debts, choses in action, and demands where the said party of the second part may deem it expedient so to do, and out of the proceeds of such sales and collections, —First, to pay the costs, charges, disbursements, and expenses of executing the assignment and carrying into effect the trust hereby created and reposed, including a reasonable attorney's fee, together with the lawful commissions of the party of the second part for his services in executing the trust hereby created; second, to pay and discharge in full (if the residue of such proceeds is sufficient for that purpose, but, if not, then ratably and in proportion, without any priority or preference whatsoever) the claims of such of the creditors of the parties of the

[24 S.E. 283]

first part who shall accept in writing the terms of this assignment, and execute a release or releases of their respective claims against the said parties of the first part; third, and then and next to pay in full (if the residue of such proceeds is sufficient for that purpose, but, if not, then ratably and in proportion) the claims of all and every other of said creditors, without any priority or preference whatever. That the party of the second part, as soon as he converts the said property into money, shall notify each and every of the creditors of the parties of the first part of the amount of money realized by him from the property hereby assigned to him, and applicable to the payment of the debts of the parties of the first part under the terms of this assignment, together with the amount of the indebtedness of the parties of the first part, as nearly as the same may be ascertained by him, and of the time and place when and where he will proceed to pay out and distribute the amount of money realized by him from the property hereby assigned in accordance with the provisions of this assignment, which said notice shall be written or printed, or partly written and partly printed, and served upon each of said creditors at least thirty (30) days previous to the time fixed in such notice for the distribution and payment of the said amount of money realized as aforesaid from the property hereby assigned, provided that such service may be made by mailing such notice to the parties to be served; and all the creditors of the parties of the first part.vho shall not, on or before the day named in such notice, give notice to the party of the second part that they will accept the terms of this assignment, and execute a release or releases in writing of their respective claims against the said parties of the first part upon payment of the amount due to them as accepting creditors, shall be deemed to have failed and refused to accept the terms of this assignment, and shall be entitled to payment under the third provision of this assignment, relating to nonaccepting creditors. And the said Albert R. Taber and George W. Willard doth hereby make, constitute, and appoint the said R Goodwyn Murray and his successors in this trust their true and lawful attorney, with full power and authority to do all acts necessary in the premises for the full and complete execution of the said trust. And the said party of the second part doth hereby accept the trust hereby created and reposed, and covenants and agrees to and with the said parties of the first part that he will faithfully and without delay execute the same, according to his best knowledge, skill, and ability. In witness whereof, the parties to these presents hereunto set their hands and seals, the day and year first above written. * * *

"Signed, sealed, and delivered in the presence of * * *.

"The State of South Carolina, County of Orangeburg. Personally appeared before me, who, being duly sworn, on oath says that he saw the within-named Albert R. Taber, George W. Willard, and R. Goodwyn Murray sign, and, as their act and deed, deliver, the above-written assignment, and that he, with * * *, witnessed the due execution thereof. Sworn to before me, this 19th day of January, A. D. 1895. * * *"

Dantzler & Dantzler and Raysor & Summers, for appellants.

Mordecai & Gadsden and Glaze & Herbert, for respondents.

McIVER, C. J. At the hearing of this case, on the 2d day of January, 1896, a question as to the jurisdiction of the supreme court, as then constituted,...