Neuffer, Hendrix & Co. v. Pardue

• Decision Date: 30 September 1855
• Parties: NEUFFER, HENDRIX & CO. v. THOMAS J. PARDUE et al.
• Court: Tennessee Supreme Court

35 Tenn. 191

NEUFFER, HENDRIX & CO.

v.THOMAS J. PARDUE et al.

Supreme Court of Tennessee.

September Term, 1855.

FROM HAMILTON.

This bill was filed at Harrison, upon the facts and for the purposes stated in the opinion. At September term, 1855, Chancellor Van Dyke decreed in favor of the complainants. The respondents appealed.

Welcker and Key, for the complainants; Minnis, for the respondents.

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

The complainants, who are merchants of Augusta, Georgia, sold goods to defendant Pardue, who had a grocery store in Chattanooga, and on the 17th February, 1853, took his note for $716.53, the amount then due, at six months. Pardue, on the 1st of August, 1853, sold out to Melville Auchinlick his entire stock, for upwards of $2,000, on time, and discontinued business. On the 13th May, 1853, Pardue executed a deed of trust to J. W. Webster for the benefit of Webster & Palms, wholesale grocers, in Savannah, upon lot No. 16, on Poplar street, in the city of Chattanooga, on which he then lived. The object and purpose of the deed is thus stated: “I have purchased of Webster & Palms (merchants) a stock of goods, for $2,500, for which I am indebted to them, and am desirous to secure and make certain the payment of said $2,500. Now, if I should pay the said debt within eighteen months from this date, then this deed to be void;” but if not then the lot to be sold by the trustee on ten days' notice, to raise the money.

This bill is filed to set aside the said deed, as well as the sale of the groceries to Auchinlick, upon the ground that they were fraudulent sales as to creditors.

There is no proof in the case, but the facts are all agreed upon in the pleadings. The only contest here is as to the lot. At the time the deed of trust was made, Webster states in his answer that Pardue was only indebted to his firm $304, for groceries then or before purchased. He proposed to secure the amount already due, and secure a further credit with them for other groceries to be ordered and delivered, in future, as they might be needed in his business in Chattanooga. The proposition was acceded to, and from the 3d to the 21st June the account was enlarged to $1,700 or $1,800. Some payments had been made, so that at the filing of the answer the balance due Webster & Palms, as they state, was $1,406, in three notes; the said note for $304, dated April 29, 1853, and due in ninety days; one for $1,009, dated June 9, 1853, at four months, for $141.

Now, the first question upon this state of facts is whether this deed of trust is fraudulent as against the complainant as a creditor, so as to afford no obstacle to the collection of his debt by this attachment bill for the sale of the lot.

The deed sets forth the false and fictitious consideration calculated to deceive and deter creditors. It purports to be for a debt then due of $2,500, when only $304 were in fact due. It does not provide for future advancements in goods or money, and purports, on its face, to be a security for such...