Stirling v. Logue

• Decision Date: 23 September 1929
• Docket Number: 27953
• Citation: 123 So. 825,154 Miss. 812
• Court: Mississippi Supreme Court
• Parties: STIRLING et al. v. LOGUE et ux

123 So. 825

154 Miss. 812

STIRLING et al. v. LOGUE et ux

No. 27953

Supreme Court of Mississippi

September 23, 1929

Division A

Suggestion of Error Overruled, Oct. 21, 1929; Suggestion of Error Overruled, Nov. 4, 1929.

APPEAL from chancery court of Hinds county, First district, HON. V J. STRICKER, Chancellor.

Suit by J. A. Logue and wife against J. B. Stirling and others. From interlocutory decrees overruling a motion for the discharge of the receiver and authorizing the receiver to lease certain real property, defendants appeal. Affirmed in part, and in part reversed and remanded.

Decree reversed, and cause remanded.

Green, Green & Potter and H. Chalmers Alexander all of Jackson, for appellants.

A receiver should not be appointed without notice except under exceptional circumstances.

Burton v. Pepper, 76 So. 768, 116 Miss. 40; High on Receivers (4 Ed.), par. 553; Henderson v. Reynolds, 168 Ind. 522, 81 N.E. 494, 11 L. R. A. (N. S.) 960, 11 Ann Cas. 977; Continental Clay & Min. Co. v. Bryson, 168 Ind. 485, 81 N.E. 210; Chicago & S.E. R. Co. v. Cason, 133 Ind. 49, 51, 32 N.E. 827; High on Receivers (3 Ed.), pars. 113, 117; Beach, Receivers, pars. 140-143; Grandin v. La Bar, 2 N.D. 206, 213, 214, 50 N.W. 151; McCarthy v. Peake, 18 How. Pr. 139, 140; Fischer v. Superior Court, 110 Cal. 129, 138, 42 P. 561; State v. Jacksonville P. & M. R. Co., 15 Fla. 210, 286; Nusbaum v. Locke, 53 Ill.App. 242, 244; Cabaniss v. Reco Min. Co., 54 C. C. A. 190, 195, 116 F. 318, 323, 324; North American Land & Timber Co. v. Watkins, 48 C. C. A. 254, 109 F. 101; Griffith's Mississippi Chancery Practice, sec. 471.

No receiver will be appointed at the instance of a simple contract creditor.

Engleburg v. Tonkel, 106 So. 448, 140 Miss. 513.

A receiver will not be appointed except as an auxiliary remedy.

Engleburg v. Tonkel, 106 So. 448, 140 Miss. 513; Griffith's Chancery Practice, secs. 467, 468, 472; Mays v. Rose, Freem. Ch. 718; Vause v. Woods, 45 Miss. 128; Clark v. Fleming, 130 Miss. 510, 94 So. 458; Whitney v. Bank, 71 Miss. 1009, 15 So. 33, 23 L. R. A. 531.

Debtor transferring property to trustee cannot complain that conveyance was void as against trustee in bankruptcy subsequently appointed.

Bank v. Allen, 77 Miss. 451; Burrell on Assignments, secs. 6, 7.

Complainant was without the requisite property rights to file a suit for a receiver.

Clark v. Fleming, 94 So. 459, 130 Miss. 504; 29 C. J. 75; Truett v. Caldwell, 3 Minn. 375; Shields v. Thomas, 71 Miss. 264; U. S. F. & G. Co. v. Bassfield, 114 So. 29; Fogg v. Bank, 80 Miss. 775; Bartlett v. Teak, 1 F. 768; Woodruff v. Robb et al., 19 O. Rep. 216; 1 Hilliard on Mortgages, 359; Penzel Co. v. Jett, 54 Ark. 430; Sayers v. Doak, 89 So. 918, 127 Miss. 216; Paine v. Hotel Co., 60 Miss. 360; Paine v. Sykes, 72 Miss. 351, 16 So. 903; Bank v. Kretchmar, 91 Miss. 608, 617, 44 So. 930; Grocery Co. v. Leach, 71 Miss. 959; Paine v. Hotel Co., 60 Miss. 360; Pollock v. Sykes, 74 Miss. 700; Rice v. Harris, 76 Miss. 423.

Trust property will be followed by a court of equity through all its transmutations and forms.

Shields v. Thomas, 71 Miss. 264; Peters v. Bain, 133 U.S. 670; Perry on Trusts, secs. 836, 841, 843; 2 Pomeroy's Eq., secs. 1048, 1058; Knatchbull v. Hallett, L. R. 15 Ch. 696; Frelinghuysen v. Nugent, 36 F. Rep. 229; U.S. F. & G. Co. v. Bassfield, 114 So. 29; Fogg v. Bank of Friars Point, 80 Miss. 750, 32 So. 285; Metcalfe v. Bank, 89 Miss. 649, 41 So. 377; Commercial Bank v. Hardy, 97 Miss. 755, 53 So. 395; Green v. Cole, 98 Miss. 67, 54 So. 65; Grocery Co. v. Leach, 71 Miss. 959; Pom. Eq. Jur., sec. 420; Central Nat. Bank v. Mutual Life Ins. Co., 104 U.S. 54, 26 L.Ed. 693; Green v. Cole, 98 Miss. 67; Hiller v. Ellis, 72 Miss. 701, 18 So. 95.

Deeds to real property with separate instruments stating deeds were to secure payment of money did not constitute assignment for benefit of creditors under Hemingway's Code 1927, sec. 107.

Pollock v. Sykes, 74 Miss. 700; Reed v. Elliott, 34 N.E. R. 320; Shillito v. McConnell, 26 N.E. R. 832; Prestone v. Spaulding, 120 Ill. 208; Union Bank of Chicago v. Kansas City Bank, 136 U.S. 223; May v. Tenny, 148 U.S. 60; Selleck v. Pollock, 69 Miss. 870; Kohn Bros. v. Clement, Morton & Co., 12 N.W. 550; Cutler v. Pollock, 25 Law. Rep. Anno. 377, p. 380; Farwell v. Nilsson et al., 24 N.E. 74; Leets-Fletcher Co. v. McMaster, 49 N.W. 1035; Estes v. Gunter, 122 U.S. 450; Weiner v. Scales, 74 Miss. 1; Love Mfg. Co. v. Queen City Mfg. Co., 74 Miss. 290; Lee v. Wilkinson, 105 Miss. 358; Williams v. Butler, 124 Miss. 661; Jordan v. Jordan, 145 Miss. 779; McGee v. Weeks, 112 Miss. 483; Allison v. Burnham, 136 Miss. 13, 100 So. 518; Jones v. McQuien, 71 Miss. 98, 14 So. 416.

Whether an assignment is general or not must be determined by the deed of assignment itself.

Taylor v. Watkins, 13 So. 811; Jones v. McQuien, 71 Miss. 98, 14 So. 416; English v. Friedman, 70 Miss. 461; Mayer v. McRea, 16 So. 875; Grocery Co. v. Leach, 71 Miss. 959; Marks v. Bradley, 69 Miss. 1; Montgomery v. Goodbar, 69 Miss. 333; Tishomingo Institution v. Allen, 76 Miss. 130; State v. Hemingway, 69 Miss. 491, 10 So. 575; Bank v. Allen, 77 Miss. 451; Burrell on Assignments, secs. 6, 7; Kaufman v. Simon, 80 Miss. 189, 31 So. 713; Bradberry v. Adams, 70 So. 698; Lowenstein v. Hooker, 71 Miss. 105; Thompson v. Preston, 73 Miss. 587; Rice v. Harris, 76 Miss. 422, 24 So. 880; Sells v. Grocery Co., 72 Miss. 590, 17 So. 226; Ingraham v. Grigg, 13 S. & M. 22; Harris v. Sledge, 21 So. 783.

Franklin, Easterling & Canizaro, of Jackson, J. W. Cassedy, of Brookhaven, and W. C. Wells, of Jackson, for appellees.

The appointment of a receiver will not be disturbed on appeal, unless it appears affirmatively to have been unwarranted; and to show this, there must be a clear preponderance of evidence against the propriety of the appointment, as the appellate court will not undertake to weigh the testimony where there is a substantial conflict in it.

Cameron v. Groveland Improvement Co., 20 Wash. 169, 72 Am. St. Rep. 26; Roberts v. Washington Nat. Bank, 9 Wash. 12; Maylor v. Sidener, 106 Ind. 179; Heard v. Cottrell, 100 M. 42, 56 So. 277; (1913) Lott v. Hull, 104 Miss. 308, 61 So. 421; (1913) Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166; (1913) Bland v. Bland, 105 Miss. 478, 62 So. 641; (1913) Lee v. Wilkinson, 105 Miss. 358, 62 So. 275; (1914) Evans v. Sharborough, 106 Miss. 687, 64 So. 466; (1914) Freeman v. Freeman, 107 Miss. 750, 66 So. 202; (1915) Humber v. Humber, 109 Miss. 216, 68 So. 161; (1916) Bank of Lauderdale v. Cole, 111 Miss. 39, 71 So. 260; (1917) Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321; (1918) Reichman-Crosby Co. v. Dinwiddie, 117 Miss. 103, 77 So. 906; (1919) Glover v. Falls, 82 So. 4; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Bradbury v. McLendon, 119 Miss. 210, 80 So. 633; Aldridge v. Bogue Phalia Drainage Dist., 106 Miss. 626, 64 So. 377; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Rhymes v. Boggins, 111 So. 844, 146 Miss. 707; Pierce v. Garrett, 142 Miss. 641, 107 So. 885.

Any assignment that purports to convey only specific property must be treated as a partial assignment until the contrary be shown. But if it be clearly shown that in fact it does convey all of the assignor's property liable for his debts, then it becomes a general assignment, regardless of its terms, and must be so dealt with.

Newman v. Black, 18 So. 543.

Argued orally by Chalmers Alexander and Garner W. Green, for appellant, and by Lamar F. Easterling, for appellee.

OPINION

SMITH, C. J.

This record presents two separate appeals from interlocutory decrees, one of which overruled a motion for the discharge of a receiver, and the other authorized the receiver to lease a portion of the real property in his hands for the year 1929.

The appellees, who are husband and wife, were the complainants in the court below, and the bill of complaint alleges, in substance:

That they were the owners of a large amount of real property, and some personalty, situated in Mississippi and Tennessee, part of the Mississippi property being two plantations in the delta portion of the state, both of which are heavily mortgaged. That J. A. Logue, the husband, became indebted to the First National Bank of Jackson, Miss., in the sum of one hundred thirty-six thousand dollars. (How this indebtedness arose does not appear from the bill, but it is spoken of therein as his shortage to the bank.) That "said complainant (J. A. Logue), being unable to replace said money because of inability to re-sell certain properties which he had acquired, and being desirous of atoning and making full restitution to the full extent of his ability . . made a full disclosure to said bank of the amount due said bank, and to all other persons, and then and there offered to deed and turn over to said bank all of the property of every kind and character which he, the said J. A. Logue, then owned or had an interest in; that the said J. A. Logue then and there stated to said directors at said meeting that he also owed other indebtednesses, some of which were not secured, and that he desired to turn all of his said property over to said bank, so that all of his creditors who had security should be paid in proportion of their priority, and that the balance of his said property should be applied to all of his other indebtednesses; and that any balance that then remained should be returned to him, or his wife; that the said directors of the said First National Bank, and the said J. B. Stirling, president of said bank, then and there agreed by and with the said J. A. Logue, complainant, that if he would transfer, assign and convey all of his property to the said J. B. Stirling as trustee, on...