Others v. Others

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtSimpson, C. J
Citation27 S.C. 272,3 S.E. 340
PartiesMagoveen and others v. Kichaed and others. Bates and others v. Same.
Decision Date20 September 1887

3 S.E. 340
27 S.C. 272

Magoveen and others
v.
Kichaed and others.

Bates and others
v.
Same.

Supreme Court of South Carolina.

September 20, 1887.


1. Chattel Mortgage—By Insolvent to Secure Valid Debt—Validity—South Car-

olina Insolvent Act.

A chattel mortgage executed by an insolvent debtor to a creditor to secure a valid claim, with knowledge by the latter of such insolvency, is not, unless followed within 90 days by an assignment for the benefit of creditors, invalidated by the South Carolina assignment act, (Gen. St. § 2014,) which declares void all preferences in assignments for the benefit of creditors. McGowan, J., dissenting.

2. Same—Intent to Defraud Other Creditors—Agreement not to Record.

Nor is such mortgage void under the statute of frauds, unless accompanied by an intent to defeat, delay, or hinder other creditors, and participated in by both parties to.the instrument; and such intent is not established merely by proof of an agreement that the mortgage should not be recorded for 40 days. McGowan, J., dissenting.

Appeal from circuit court, Darlington county; Cothean, Judge.

Mr. Mordecai, R. W. Boyd, J. T. Nettles, and Mr. Rutledge, for appellants. B. K. Bargan, Dargan & Dargan, and Ward & Nettles, for respondents.

Simpson, C. J. These two cases were heard together below, and also in this court, but they have no necessary connection with each other, nor are they governed by the same principles; therefore, though embraced in the same opinion, they have been considered and determined separately, as will appear below. The object of the action in each case was to annul and set aside a chattel mortgage executed in 1883, by the defendant Richard, to his co-defendants, Bollman Bros. In the first-named case, the ground of the attack was that the alleged mortgage was really intended as an assignment, in which a preference was given to the said Bollman Bros., and therefore void under the assignment act, (Gen. St.;) that of the second was that said mortgage was void under the statute of Elizabeth. The plaintiffs in the first action had not reduced their claim to judgment. But those in the second had.

In the first action, his honor, Judge Hudson, on ex parte application of

[3 S.E. 341]

plaintiffs, granted a preliminary injunction restraining Bollman Bros, from enforcing their mortgage. This injunction, on proper notice of motion thereto, was dissolved by his honor, Judge Kershaw, at his chambers; his honor holding that the mortgage in question could in no sense be regarded as an assignment with preference. From this order there was no appeal. But on the hearing of the case afterwards, by Judge Cothran, the ground upon which Judge Kershaw had dissolved the injunction was reversed, and the mortgage was held an assignment, and executed in violation of the spirit, at least, of the assignment act, and therefore null and void. The same holding was had by his honor, Judge Cothran, in the second case, and also that the said mortgage was fraudulent and void, as intended to delay, defeat, and defraud the creditors of the said Richard.

From the decree rendered below, embracing the two cases, the appeal is now before us, in which error is alleged to said decree in the first case—First, because his honor, Judge Cothran, reviewed and reversed the ruling of Judge Kershaw, and, second, that, if Judge Cothran had jurisdiction of the matter ruled by Judge Kershaw, then he erred in holding the mortgage an assignment with preference, and therefore void under the assignment act; in the second case, that he erred in holding the mortgage void, whether his said holding was based on the idea that the mortgage was an assignment, or in fraud, or a contrivance to defeat, delay, etc., creditors, and therefore void under the statute of Elizabeth.

Now, applying our remarks to the first above-named case, we are compelled to say that we do not find in the testimony anything more than an ordinary mortgage executed by a debtor, —insolvent, no doubt, at the time, —covering a large portion of his property, in favor of one creditor over other creditors. This...

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21 practice notes
  • Rice v. City Of D.C., (No. 12369.)
    • United States
    • United States State Supreme Court of South Carolina
    • 4 Febrero 1928
    ...as established and uniformly applied by a long line of cases. In the very strong and well-considered case of Ma govern v. Richard, 27 S. C. 272, 3 S. E. 340, the court (per Mr. Chief Justice Simpson) says: "Now, there can hardly be a doubt, in fact, it is not denied, that Bollmann Brothers ......
  • Wylly-gabbett Co. v. Williams
    • United States
    • United States State Supreme Court of Florida
    • 17 Enero 1907
    ...by the statute.' Preston v. Spaulding, 120 Ill. 208, 10 N.E. 903; Verner v. McGhee, 26 S.C. 248, 607, 2 S.E. 113; Magovern v. Richard, 27 S.C. 272, 3 S.E. 340; Cribb v. Hibbard, Spencer, Bartlett & Co., 77 Wis. 199, 46 N.W. 168; McBroom & Wood's Appeal, 44 Pa. 92; Jaffrey v. Mathews, 120 Mo......
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • 18 Mayo 1937
    ...Jenkins v. Clement, Harp.Eq. [72] 85, 14 Am.Dec. 698; Greene v. Mobley, 112 S.C. 275, 99 S.E. 814; Magovern v. Richard, 27 S.C. [272] 286, 3 S.E. 340; Rice v. City of Columbia, 143 S.C. 516, 141 S.E. 705. * * * "If in the final event the property of the debtor is not sufficient to pay his d......
  • James v. Martin, (No. 12629.)
    • United States
    • United States State Supreme Court of South Carolina
    • 4 Abril 1929
    ...we find the case of Lenhardt v. Ponder, 64 S. C. 364, 42 S. E. 172, quoted: 'The rule is thus stated in Magovern v. Richard, 27 S. C. 286, 3 S. E. 340: "Was the mortgage void under the Statute of Frauds? To be void under said statute or at common law, it should be made to appear that it was......
  • Request a trial to view additional results
21 cases
  • Rice v. City Of D.C., (No. 12369.)
    • United States
    • United States State Supreme Court of South Carolina
    • 4 Febrero 1928
    ...as established and uniformly applied by a long line of cases. In the very strong and well-considered case of Ma govern v. Richard, 27 S. C. 272, 3 S. E. 340, the court (per Mr. Chief Justice Simpson) says: "Now, there can hardly be a doubt, in fact, it is not denied, that Bollmann Brothers ......
  • Wylly-gabbett Co. v. Williams
    • United States
    • United States State Supreme Court of Florida
    • 17 Enero 1907
    ...by the statute.' Preston v. Spaulding, 120 Ill. 208, 10 N.E. 903; Verner v. McGhee, 26 S.C. 248, 607, 2 S.E. 113; Magovern v. Richard, 27 S.C. 272, 3 S.E. 340; Cribb v. Hibbard, Spencer, Bartlett & Co., 77 Wis. 199, 46 N.W. 168; McBroom & Wood's Appeal, 44 Pa. 92; Jaffrey v. Mathews, 120 Mo......
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • 18 Mayo 1937
    ...Jenkins v. Clement, Harp.Eq. [72] 85, 14 Am.Dec. 698; Greene v. Mobley, 112 S.C. 275, 99 S.E. 814; Magovern v. Richard, 27 S.C. [272] 286, 3 S.E. 340; Rice v. City of Columbia, 143 S.C. 516, 141 S.E. 705. * * * "If in the final event the property of the debtor is not sufficient to pay his d......
  • James v. Martin, (No. 12629.)
    • United States
    • United States State Supreme Court of South Carolina
    • 4 Abril 1929
    ...we find the case of Lenhardt v. Ponder, 64 S. C. 364, 42 S. E. 172, quoted: 'The rule is thus stated in Magovern v. Richard, 27 S. C. 286, 3 S. E. 340: "Was the mortgage void under the Statute of Frauds? To be void under said statute or at common law, it should be made to appear that it was......
  • Request a trial to view additional results

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