Middleton v. Taber

• Decision Date: 20 March 1896
• Citation: 24 S.E. 282,46 S.C. 337
• Parties: MIDDLETON et al. v. TABER et al.
• Court: South Carolina Supreme Court

24 S.E. 282

46 S.C. 337

MIDDLETON et al. v. TABER et al.

Supreme Court of South Carolina

March 20, 1896

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 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 who 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, to hear and determine this case, was raised. This being a question of the gravest character, involving the powers of one of the co-ordinate departments, the court requested the attorney general to attend and argue the question, and argument was invited from any other member of the bar who might be disposed to discuss the question. The attorney general not being able to attend, he was represented by his assistant; and, after full argument from him and such other members of the bar as chose to participate, the court took the question under advisement, and, on the next morning, announced its conclusion in a short order, overruling the objection to the jurisdiction of the court as then constituted to hear and determine the case; saying that its reasons would be stated in an opinion subsequently to be prepared. Accordingly, the court will now proceed to set forth the grounds upon which its conclusion was based.

Inasmuch as the present constitution declares, in subdivision 8, § 11 art. 17, that "this constitution adopted by the people of South Carolina in convention assembled, shall be in force and effect from and after the thirty first day of December, in the year eighteen hundred and ninety five," there can be no doubt that the present constitution had gone into effect when the question of jurisdiction was presented. It will be proper, therefore, to state such provisions of the present constitution as are supposed to affect this question of jurisdiction. In section 2 of article 5 it is provided that "the supreme court shall consist of a chief justice and three associate justices, any three of whom shall constitute a quorum for the transaction of business, *** and shall be so classified that one of them shall go out of office every two years." In section 3 of the same article, the provision is as follows: "The present chief justice and associate justices of the supreme court are declared to be the chief justice and two of the associate justices of said court, as herein established, until the terms for which they were elected shall expire: and the general assembly, at its next session, shall elect the third associate justice, and make suitable provision for accomplishing the classification above directed." Section 6 of the same article, after designating the causes which shall disqualify a judge from presiding at the trial of any cause,--to wit, interest, relationship to any of the parties, having been of counsel, or having presided in any inferior cou...