Van Wyck v. Read

• Decision Date: 01 August 1890
• Citation: 43 F. 716
• Parties: VAN WYCK v. READ et al.
• Court: U.S. District Court — Northern District of Florida

43 F. 716

VAN WYCK v. READ et al.

United States Circuit Court, N.D. Florida.

August, 1890

Joseph R. Parrott, for complainant.

H. W Cockrell & Son, for defendants.

SPEER J.

The controversy before the court has arisen on the following statement of facts: John H. Boynton, a citizen of the state of New York, was engaged in the lumber business, and made advancements to J. C. Read, of this district, taking therefor his note for $4,000, dated June 23, 1879, payable at the office of John H. Boynton in New York, and due two years after date. To secure this note, on the 23d day of June 1879, Joseph C. Read and Mima A. Read, his wife, executed their mortgage upon a tract of land on Amelia island, in the county of Nassau, and the buildings thereon, known as the 'Amelia Steam Saw-Mill of Fernandina, Florida. ' The note and mortgage are of even date, and the mortgage was recorded June 27, 1879. Thereafter, to-wit, on the 18th of August, 1884, John H. Boynton, having become insolvent executed an assignment, general in its purpose, but with certain references to favored creditors, to Samuel Van Wyck with instruction and power to convert all of his assets so assigned into cash, and to pay, among others, the following preferred debts: To Louisa B. Boynton, $26,808.05; to Theodosia Boynton, $20,356.81; to Isabel D. Boynton, $1,080; to Frederick C. Boynton, $5,536. After these and other preferred creditors were paid, the residue was appropriated to pay the remainder of the assignor's debts and liabilities. This assignment was recorded on the 28th of August, 1884, as appears from an exemplification from the record put in evidence, and the note and mortgage before described passed to the said Van Wyck by virtue of said assignment, the note bearing also the following indorsement: 'Pay Saml. Van Wyck, assignee, or order,' signed 'JOHN H. BOYNTON.' Among other creditors of John H. Boynton were Dexter Hunter, J. H. Prescott, Lettie Miller, and Wilson and Hunting, residents of this district, who held claims for different amounts. On the 24th and 25th of August, 1884, they sued out attachments, and had process of garnishment issued thereon, serving the same on Joseph C. Read and Mima A. Read, the debtors of Boynton, before mentioned, as evidence by the note and mortgage before described. These proceedings went regularly to judgment in the state courts, and Joseph C. Read has been left until now in the possession of the mortgaged premises.

The bill is filed by Van Wyck, the assignee, to enforce the foreclosure of the mortgage, and to assert the superiority of his claims as assignee of the note and mortgage to the claims of the general creditors who have obtained judgments in attachments. The judgment creditors by way of defense insist that the assignment to Van Wyck was never executed, as set out in the bill; that after the date of its alleged execution Boynton, the assignor, remained in control of the property assigned, which they insist is a badge of fraud; that the assignment is illegal, null, and void, and not in compliance with the laws of the state of New York; and that the original bill is not prosecuted in the interest of the plaintiff, but in the interest of Daniel G. Ambler. These defenses are set up by way of cross-bill, and the defendants pray that they may be subrogated to the rights of Boynton, and that the proceeds of the note and mortgage be appropriated to pay off and discharge the liens of their judgments of attachments.

The plaintiff proved by the depositions of Frederick C. Boynton Theodosia Boynton, Isabel Boynton, and John H. Boynton himself the nature of the debts to secure which the preferences in the assignment were made. It appears that Frederick C. Boynton was the son of John H. Boynton; that he was his father's clerk, and had an unpaid account for salary for about $1,000. He loaned his father a produce exchange ticket in 1883, but the evidence is wholly silent as to the value of such loan. He had made no loan to his father other than the undrawn salary. He maintained no separate establishment from his father, has lived with his father all the while, and it is impossible for him to estimate how much has been expended by his father in his maintenance since 1876. John H. Boynton testifies to the claim of Mrs. S. B. Boynton, his mother. She loaned him money and bonds to the amount of $27,000. The claim of Theodosia Boynton he testifies was $10,000 in cash from the sale of her house in forty-Ninth street, and $10,000 in Houston & Texas bonds. All...