Williams v. Crocker

• Decision Date: 26 July 1895
• Citation: 18 So. 52,36 Fla. 61
• Parties: WILLIAMS et al. v. CROCKER.
• Court: Florida Supreme Court

18 So. 52

36 Fla. 61

WILLIAMS et al. v. CROCKER.

Florida Supreme Court

July 26, 1895

Appeal from circuit court, St. Johns county.

Action by Susan T. Williams and Samuel T. Williams against George W Gibbs and others. Pending suit, plaintiffs brought garnishment against George A. Crocker. Judgment in garnishment against plaintiffs, and they appeal. Reversed.

Syllabus by the Court

SYLLABUS

1. The provision of the assignment law (chapter 3891, Acts of 1889) requiring the assignor to make oath to the effect that he had placed in the hands of his assignee all of his property, of all kinds whatsoever, was mandatory, and a failure to make such oath rendered an assignment inoperative and void.

2. The practice is well established that the validity of a deed of assignment, made for the benefit of creditors, and alleged to be fraudulent or void, may be tested and tried in a court of law upon an issue made between a creditor and the assignee summoned as garnishee under the provisions of law relating to garnishments; and in the trial of such issue, if the assignment is found to be fraudulent, ineffectual, or void the garnishing creditor should recover against the assignee the amount found in his hands under such void assignment at the time of the service of the writ up to the extent of such creditor's claim.

3. The evident purpose of said assignment law (chapter 3891) was to prohibit partial assignments for the benefit of creditors in this state, and to prohibit therein the preferment of one creditor over another. Where a deed of assignment made by a firm of copartners for the benefit of their creditors conveyed to the assignee nothing but the joint property of the firm, without including also the property of the individuals composing the firm, it was a partial assignment only, and void under this statute requiring a conveyance of all the debtors' property.

COUNSEL W. A. MacWilliams and M. C. Jordan, for appellants.

OPINION

TAYLOR J.

In the year 1890 the appellants herein, as plaintiffs below, sued George W. Gibbs, Charles F. Hopkins, Jr., and Theodore H Livingston, as copartners, doing business under the firm name of the St. Johns County Savings Bank & Real-Estate Exchange, in assumpsit for recovery of a money deposit made with said firm, and on January 30, 1891, recovered final judgment against said firm upon a default for $220.91. Pending the said suit, the plaintiffs therein sued out a writ of garnishment, and caused the same to be served upon the appellee herein, George A. Crocker, requiring him, in the usual form of such writs, to set forth upon oath what goods and chattels, rights and credits, money or effects were in his hands, custody, or control, at the time of the service of such writ or since, belonging to the said defendant firm, and in what sum he was indebted to them. To this writ the garnishee answered, denying that he was indebted to the said firm, or to any of its members, in any sum, and denying that he had in his hands, custody, or control any of their property. To this answer of the garnishee the plaintiffs interposed a traverse, and the issue thus joined was submitted to the court for its decision, a jury being waived, by consent and agreement of the parties in writing, upon the following agreed state of facts: (1) The said Susan T. Williams, in a joint action with the said Samuel T. Williams, her husband, against the said George W. Gibbs, Charles F. Hopkins, Jr., and Theodore H. Livingston, partners, doing a private banking business under the firm name and style of the St. Johns County Savings Bank, has recovered judgment in this court against the said defendants in the sum of $213.18 damages, and $7.73 costs of suit, on the 30th day of January, A. D. 1891, and at the time of the commencement of said suit, to wit, the 6th day of November, A. D. 1890, sued out a summons of garnishment to the said George A. Crocker, assignee of the said defendant, and individually. (2) The said garnishee has filed his answer, and the same has been traversed. (3) The articles of assignment under which the said garnishee obtained control and custody and possession of the property of the said defendants are hereto annexed as Exhibits A, B, and C. (4) That the said George A. Crocker, by virtue of said articles, obtained property of the said defendants of the present value of about $1,500. That, at the time of the execution of Exhibit A, said partners owned and possessed individual property, aside from said partnership property, and were indebted individually to divers persons. (5) If the court shall adjudge the said papers purporting to be articles of assignment to be void, then these plaintiffs are entitled to judgment against said Crocker, defendant garnishee, and the court may enter up judgment accordingly, subject to such rights of review, appeal, etc., as the respective parties would have if the case had been tried by a jury. (6) The said garnishee has filed the bond, and the assignors the affidavit, as in their belief is required by chapter 3891 of the Laws of Florida, the sufficiency of which the court may pass upon.

The exhibits A, B, and C, referred to by the court as part of the above agreed statement of facts, with the schedules and affidavits thereto, are as follows:

Exhibit A.

'George W. Gibbs et al., Copartners, to George A. Crocker.

'Assignment for the Benefit of Creditors.

'This indenture, made this 31st day of October, A. D. 1890, by and between George W. Gibbs, Charles F. Hopkins, Jr., and Theodore H. Livingston, the two former of St. Johns county, Fla., and the latter of Duval county, Fla., as copartners under the firm and style of the St. Johns County Savings Bank, of the first part, and George A. Crocker, of St. Johns county aforesaid, of the second part, witnesseth: That whereas, the aforesaid copartnership firm has become embarrassed, and is no longer able to pay its debts in full, but is desirous of having its property applied ratably to the payment of its debts, so far as such property will pay the same, now, in consideration of the premises, and of one dollar to them in hand paid by the party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby confessed, the parties of the first part have granted, bargained, sold, conveyed, assigned, transferred, and set over, and by these presents do grant, bargain, sell, convey, assign, transfer, and set over, unto the party of the second part, the following described property, to wit, all the property, both real and personal property, interests, goods, wares, merchandise, credits, and things in action, whether legal or equitable, and all the estate of every kind and description whatsoever of the said copartnership firm, the St. Johns County Savings Bank; to have and to hold the same, and each and every part thereof, to him, his heirs, and assigns, in trust, nevertheless, to and for the uses and purposes following, to wit: To ask, demand, receive, and sue for and collect, at law or otherwise, in the same manner as parties of the first part might or could do in their own right, all debts, dues, claims, and demands held or owned by said copartnership firm against any and all persons or corporations whatsoever; to proceed to dispose of all the property of the said copartnership firm to the best interest of all parties concerned, either at public or private sale, as to him may seem best, and convert the same into money; and to pay and apply the moneys of said firm on hand at the date hereof, and the moneys so collected and received as aforesaid, in the manner following, to wit: To pay, firstly, the reasonable cost and expense of executing the assignment herein and hereby made, and carrying out the trust herein created; secondly, to pay, out of any sum remaining, all debts owing by said copartnership firm in full, whether the same be due or not, and, if there shall not be sufficient moneys to pay all such debts in full, then to apply such moneys in payment of such debts equally and ratably in proportion to the respective amounts thereof; and, thirdly, if, after paying all the debts and liabilities of said copartnership firm in full, there shall be left any residue of the moneys aforesaid, then to pay such residue in equal and ratable proportions to the parties of the first part hereto, their heirs and assigns, Provided, nevertheless, that the party of the second part shall not proceed to dispose of the property hereby assigned, or to collect the debts due to said copartnership firm, or pay out to the creditors of said firm any moneys on hand at the date hereof, until he shall have given and filed the bond required in and by section 4 of chapter 3891 of the Laws of Florida, and shall have given notice by publication to the creditors of said firm, and by mail, as required in and by section 6 of chapter 3891 aforesaid. A schedule of property of said firm, so far as now known, is hereby annexed, marked 'Ex. A.' and made part hereof. In consideration of the premises, the party of the second part accepts the trust herein reposed in him, and covenants and agrees that he will perform and discharge the duties of assignee herein imposed upon him, as herein prescribed and according to law, to the best of his ability. In witness whereof, the parties hereto have hereunto set their hands and affixed their seals the day and year first above written.

'The St. Johns Co. Savings Bank. [Seal.]

'George W. Gibbs. [Seal.]

'Chas. F. Hopkins, Jr. [Seal.]

'Theodore H. Livingston. [Seal.]

'George A. Crocker. [Seal.]

'Signed sealed, and delivered in presence of us. And we certify 'in the same manner as parties of the first might or could do in their own right,' interlining page 2, line 8, before execution;...