Rockland Company v. Summerville
| Decision Date | 20 December 1894 |
| Docket Number | 17,051 |
| Parties | Rockland Company et al. v. Summerville et al |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
The judgment is affirmed.
J. L Shrum, J. W. Paul and M. W. Bruner, for appellants.
J West, for appellees.
This was an action brought by appellants as judgment creditors against appellees, to set aside as fraudulent a sale of personal property and to subject the same or its proceeds to the payment of the judgments.
There was a finding of facts by the court, with conclusions of law and judgment in favor of the appellees.
The conclusions of law and the overruling of the motion for a new trial are assigned as errors.
The facts as found by the court are:
1. That in November, 1887, one Alex. F. Ramsey was the owner of a stock of boots and shoes, from which he was selling at retail in a storeroom in the city of Crawfordsville. The storeroom was then, and still is, owned by the appellee Peter C Summerville.
2. That in November, 1887, Ramsey sold his stock of boots and shoes to the appellees, William A. and Walter K. Summerville, at the estimated price, in the way of trade, of $ 3,500; that in pay therefor he received a deed for a certain lot and building thereon in said city at the estimated value of $ 3,500, which lot and building so conveyed was the property of Peter C. Summerville and was so deeded in payment for said goods by virtue of an arrangement between him and his sons William and Walter K.; that afterwards William and Walter K. Summerville executed their promissory notes for $ 2,000 with interest to Peter C. Summerville, their father, which interest they paid regularly to him each month, together with rent of storeroom up to August, 1890.
3. That soon after the purchase of said stock of boots and shoes by the Summervilles, one Maurice Kelly became a member of the firm and they did business under the firm name of Summerville & Kelly; that previously, in the year 1882 and not thereafter, Peter C. Summerville and one Kelly had done business in boots and shoes in the city of Crawfordsville under the firm name of Summerville & Kelly; that when Maurice Kelly became a member of the firm with Summerville Bros. in 1887 he paid in cash into said firm the sum of $ 1,000, which money he had borrowed from his mother, Mary Kelly, who was also the mother-in-law of Peter C. Summerville.
4. That in 1889 Maurice Kelly sold his one-third interest in the firm to the Summerville Bros., they agreeing to pay the firm debts and also to pay to Mary Kelly her $ 1,000. The business was continued under the style of Summerville & Bro., and the firm paid the debt due Mary Kelly by executing to her their promissory note for $ 1,000, on which note Peter C. Summerville was surety. At the time of the dissolution of the firm of Summerville & Kelly they owed the Citizens' National Bank of Crawfordsville $ 1,000, which sum at the time it was borrowed Peter C. Summerville agreed to stand good for.
5. That Summerville & Bro. continued in the business at the same stand, and to all appearance seemed reasonably prosperous until, July 4, 1890, when Walter K. went to his father and said he would not longer continue in the firm, that he and his brother had fallen out, that William was dissipated and the business was going from bad to worse, and told his father to take the store and save himself for what money he had loaned the firm and what he had made himself liable for, and then gave his father the key to the store and did not return there any more to do business; that at the time William and Walter K. Summerville went into business, in 1887, they were each married and were householders, and neither had any property subject to execution, except their interest in the store, and so continued until the firm of Summerville & Bro. ceased to do business, and are still so insolvent, and that Peter C. Summerville has all the time been solvent, and has good business reputation.
6. That on July 10, 1890, Peter C. Summerville negotiated with William who still continued in charge of the store, for the whole stock of goods with accounts due the firm, for which he agreed to cancel and pay the $ 2,000 note made to him by the firm, which was the original investment, and to pay the $ 1,000 note due to Mary Kelly, on which he was security, and also the note or notes due the Citizens' Bank for $ 1,000, less any amount which might have been paid on the principal; that William, on the part of the firm, accepted the proposition, and, on July 11, 1890, a bill of sale for the stock of goods with accounts due the firm, was executed by Summerville & Bro. and delivered, with the key to the store, to Peter C. Summerville, who then took charge of the same and closed the store and openly claimed to be the owner of the same and offered to sell the stock and made efforts to find a purchaser therefor.
7. That Peter C. Summerville paid and canceled all the notes and debts assumed by him in the transfer to him of said stock of goods, amounting to nearly $ 4,000.
8. That the appellants are each bona fide creditors of the firm of Summerville & Bro., and have recovered judgments for the several amounts of their claims, and no part of said judgments is paid or replevied.
9. That the store room remained closed, and in the open and notorious possession of Peter C. Summerville, claiming to be the owner and offering to sell said stock of goods, from July 11 to August 28, 1890, at which time he contracted to sell the same to the appellee James Kelly (not of kin to any of the appellees) for the agreed price of 60 per cent. of...
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