Ritchie County Bank v. McFarland

• Citation: 183 F. 715
• Decision Date: 14 November 1910
• Docket Number: 947.
• Parties: RITCHIE COUNTY BANK et al. v. McFARLAND et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

183 F. 715

RITCHIE COUNTY BANK et al. v. McFARLAND et al.

No. 947.

United States Court of Appeals, Fourth Circuit.

November 14, 1910

Sherman Robinson, for petitioners.

Smith D. Turner and C. D. Merrick, for respondents.

Before GOFF and PRITCHARD, Circuit Judges, and WADDILL, District judge.

WADDILL District Judge.

This case is now before the court upon a petition to superintend and revise, in matter of law, proceedings of the District Court of the United States for the Northern District of West Virginia, at Parkersburg. The respondents herein have moved the court to dismiss this petition to superintend and revise for the reason that the relief sought, if obtainable, must be by an appeal; but after mature consideration of the same we are of opinion, for the reasons stated by this court in the case of Morgan v. First National Bank of Mannington, 145 F. 466, 468, 469, 76 C.C.A. 236, that the motion should be denied.

On the 4th day of February, 1909, a petition in involuntary bankruptcy was filed against the Elletson Company, formerly known as the Elletson-Carver Company, and upon due proceedings had the company was thereafter duly adjudged an involuntary bankrupt and the respondent R. L. McFarland was elected and qualified as trustee of the bankrupt's estate. Some years prior to the bankruptcy, to wit, on the 15th day of February, 1905 the Elletson-Carver Company executed a trust deed to George H. Carver, trustee, upon its job printing outfits, machinery type, presses, paper cutters, cases, racks, galleys, etc., also its machinery and appliances used in connection with its book bindery, 'together with all the stock of furnishings, fixtures, and materials of whatsoever nature or use in the sales room, stock room, bindery room, or composing room, together with all stock of books, paper, stationery, office supplies, furnishings, and fixtures, to include every and all item or items of whatsoever kind and whatever nature used in and about or now in and upon the premises known as No. 231 Third street, in the F. R. Rose Building, it being the intention of this deed of trust to convey every and all appliances, attachments, furniture, fixtures, and machinery of all kinds and character, together with the attachments thereof and every part of the equipment, furnishings, and fixtures used in and about the conducting of the business known as the Elletson-Carver Company, now in or upon the premises, together with all accounts then due the Elletson-Carver Company, or the Elletson-Carver Company as assignee of the Elletson Printorium, Will A. Elletson, proprietor, it being all the property of every kind, character and description, together with the books, accounts, lease, furniture, fixtures, and stock now on hand of the said the Elletson-Carver Company,' to secure E. M. Carver five certain negotiable notes, aggregating $12,000, said notes maturing on or before June 1, 1905, September 1, 1905, November 1, 1905, January 1, 1906, and March 1, 1906, and all payable at the Ritchie County Bank. The trust deed provided that on default in the payment of any of said notes, or any installment of interest, or the rent of the premises, or insurance upon the property which was required to be kept up for the benefit of the note holder, that the trustee, upon the request of the said E. M. Carver, or of his lawful assignee, should advertise and sell for cash all the property mentioned in this trust deed, or which might be and belong to the Elletson-Carver Company. The first two of these notes were paid, and the others...