Taylor v. Lauer
| Citation | 37 S.E. 197,127 N.C. 157 |
| Parties | TAYLOR v. LAUER et al. |
| Decision Date | 13 November 1900 |
| Court | United States State Supreme Court of North Carolina |
Appeal from superior court, Guilford county; Moore, Judge.
Action by Z. V. Taylor against Martin Lauer and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.
An assignee under a voluntary assignment for the benefit of creditors may attack a conveyance made by his assignor as having been made in fraud of creditors.
J. T Morehead, for appellants.
Chas M. Stedman and Bynum & Bynum, for appellee.
On the 22nd of March, 1898, Max Pretzfelder, being hopelessly insolvent and owing many debts, executed and delivered to the firms of Louis Lauer (the defendant Martin Lauer being a partner) and Selz Bros. a bill of sale of his entire stock of goods and other personal property,-substantially his entire assets. The consideration expressed in the deed was $3,447,-the indebtedness of Pretzfelder to the two sets of creditors, grantees. A week later Pretzfelder made an assignment of the same property to Z. V. Taylor for the benefit of numerous creditors mentioned in a schedule annexed thereto, embracing the two firms above mentioned. Taylor, the assignee, called upon Martin Lauer, who had possession of the property conveyed in the bill of sale, and demanded possession of the same, and the demand was refused. This action was begun by Taylor, the assignee, by the issuance of a summons against all the individual members of the two firms, grantees in the bill of sale; and in the original complaint it was alleged that it was the purpose and design of Pretzfelder, in executing the bill of sale, to hinder and delay his creditors, and to afford ease and comfort and credit to himself, and that "said bill of sale, though absolute in form, was intended and understood by all parties interested therein to be in the nature of a mortgage to secure the debts due said mercantile firms, amounting to between $3,400 and $3,500, all of which said facts, together with the said purposes and design of said Max Pretzfelder to hinder and delay his creditors and to afford ease and comfort to himself, were well known and understood to said mercantile firms of Louis Lauer and Selz Bros., who availed themselves of said facts, purpose, and design to illegally profit themselves at the expense of the other creditors of said Max Pretzfelder."
It was also alleged that Martin Lauer, one of the defendants rapidly sold out the entire property, and turned over the proceeds of the sale to the grantees. The value of the property was alleged to be $7,000, and judgment was demanded against the defendants for that amount. The plaintiff afterwards amended his complaint by adding, "The said bill of sale, though absolute in form, was intended and understood by all parties interested therein to be in the nature of a mortgage to secure the debts due said mercantile firms, amounting to between $3,400 and $3,500," and later by adding to the amendment the following: "In securing said bill of sale an undue advantage was taken of the necessities of said Max Pretzfelder by his indebtedness to said firms of Louis Lauer and Selz Bros., who, availing themselves of their power over said Pretzfelder, obtained said bill of sale, promising and agreeing that after their debts were paid the balance of the stock of goods and articles conveyed to them should be returned to said Pretzfelder." Upon the trial the plaintiff introduced the assignment as evidence of his title to the property, the third section thereof being in the following words There was undisputed testimony that there were two debts (one of considerable amount) due by Pretzfelder to other creditors than those named in the schedule of indebtedness.
The plaintiff insisted that the assignment was a general one for creditors, and without preferences, and therefore offered no proof of the...
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