Peacock v. Tompkins

• Citation: 20 Tenn. 135
• Parties: PEACOCK v. TOMPKINS et al., original bill. PEYTON v. PEACOCK, cross-bill.
• Decision Date: 31 December 1839
• Court: Supreme Court of Tennessee

20 Tenn. 135

PEACOCK

v.TOMPKINS et al., original bill.

PEYTON

v.PEACOCK, cross-bill.

Supreme Court of Tennessee.

December, 1839.

William Turner was indebted to Tompkins in the sum of $323.31, to Patterson and Tompkins in the sum of $100, to D. McAuly in the sum of $140, and to D. and A. McAuly in the sum of $629.14, and, being in embarrassed and failing condition, executed on July 7, 1837, a deed by which he conveyed in trust to Charles Lewis all his personal property, supposed to be worth about $1,600, for the purpose of securing the above named individuals in the payment of their several debts. For the purpose of covering this property with a sufficient amount of debt, and probably with a view to secure to himself a further credit with Tompkins and D. and A. McAuly, he executed a note, on the same day the deed was executed, to Tompkins for the sum of $300, to be due on December 25, 1837, and another to the McAulys for $200, to be due on January 1, 1838.

On January 20, 1838, Turner confessed judgment in favor of Peacock for the sum of $1,072.08, that amount being due Peacock from Turner. On the 28th of the same month a fi. fa. was issued on the judgment, which was directed and came to the hands of the sheriff of Sumner county, and was returned by him, on the 29th of the same month, nulla bona.

Peacock filed his bill in the chancery court at Gallatin, on February 3, 1838, against Lewis, Turner, and the beneficiaries of the deed of July 7th, declaring that the said deed was fraudulent, and praying that the property specified in said deed of trust might be subjected to the satisfaction of his judgment. It appears that on July 8, 1837, Turner executed a second deed of trust to Lewis, conveying a large proportion of the same property conveyed in the deed of the 7th, to secure a debt due to B. and J. H. Peyton of $447. The deed provided that this debt should be satisfied out of the property “in the event there was a sufficiency left after discharging the several sums set forth and due in the deed of the 7th, or in the event that the deed of the 7th was vitiated and set aside.”

The second deed was endorsed on July 10, 1837, with the following words, to wit:

“State of Tennessee, Sumner county. The within deed of trust from William Turner to R. H. Lewis, trustee, for the use and benefit of B. and J. H. Peyton, on one frame shop in South Gallatin, four kettles, one lead and three casts, stock of furs, all the hats, finished and unfinished, now in the shop, trimmings and all other materials, tools, and furniture of every description appertaining to the same, notes, book accounts, and one carryall and gear, was acknowledged by the said Turner, this 10th day of July, 1837.”

Thomas Donoho,

Clerk of the County Court of Sumner.”

This deed was registered on July 10, 1837. On March 27, 1838, the Peytons filed their cross-bill in the cause against all the parties to the original bill of Peacock, impeaching the deed of trust of July 7th, to Lewis, for the same reasons that Peacock urged against it, and praying that it might be declared void and their deed established. They further allege that Peacock's judgment was obtained on January 20, 1838, and that his fi. fa. issued on the 28th of the same month, and that the deed of trust made on July 8, 1837, and acknowledged and registered on the 10th of the same month. “to Robert H. Lewis, for the benefit of B. and J. H. Peyton, as above exhibited in this suit, was the first bona fide lien upon the goods and effects thus conveyed as aforesaid by the said William Turner, and that said debt should be first satisfied out of the proceeds arising from the sale of said property.”

The defendants to this cross-bill answered it, and Peacock alleged that the defendants in the cross-bill had acquiesced in the justice of the claims of the deed of July 7th, and affirmed the same, and that, after the complainants had eviscerated the frauds in said deed by their bill, complainants should not have any priority granted them.

The causes were brought on for hearing October 10, 1838. The chancellor, Bramlett, being of opinion that the deed of July 7th was fraudulent by operation of law, and that the deed for the benefit of the Peytons had not been proven and registered according to law, decreed that Peacock's judgment should be first satisfied, and, secondly, that...