72 Miss. 549 | Miss. | 1895
delivered the opinion of the court.
Thomas H. Allen & Co. made a partial assignment November 25, 1890," to M. B. Trezevant, for the benefit of their firm creditors, including certain lands, the separate property of Thomas H. Allen, Sr. On the same day, Thomas H. Allen made a supplemental deed conveying this land to said Treze-vant, such deed being made in pursuance of said assignment and to make the same effective as to this land. On the twentieth of December, 1890, a^ composition was agreed to by nine-tenths of the creditors, whereby the debts were to be put into notes due in six, twelve, eighteen, and twenty-four months, and the assignee was to return the personal assets to the assignors, on the theory that they could make more out of said assets for the creditors than anyone else. This composition agreement was signed by nine-tenths of the creditors — the other tenth not being parties to it and the assignee not being a party to it — and all the personal assets, except an estimated
On July 2, 1892, the complainant, appellee, filed a bill in the chancery court of Coahoma coimty, Mississippi, seeking to subject a note for the purchase money of land, due by B. B. Wad-dell to Thos. H. Allen, Sr. A decree was entered below against appellee on this issue, and it prosecutes a cross appeal.
On July 25, 1892, the appellee filed in said chancery court of Coahoma county an amended bill, making Thos. H. Allen, Sr., and M. B. Trezevant, the assignee, parties defendant (Trezevant being also the trastee in the separate deed executed by
So far as the cross appeal is concerned, it is sufficient to say that the action of the chancellor on the facts in the record touching that issue is correct, and it is affirmed.
So far as the decree of the chancery court in Memphis, on the appellee’s amended bill, is concerned, it presents a wholly distinct issue from that presented by this bill, and that decree is not rex adjudioata of this controversy.
Coming to the amended bill filed in this case, wo think it is clear that both the nine-tenths of the creditors who did assent to the composition agreement and the one-tenth who did not, should have been parties defendant to this bill.
First, as to the one-tenth who did not sign. They claim under the original assignment and deed in aid thereof, and
As to the assenting creditors, the, general rule undoubtedly is that ‘' where the complainant claims in opposition to the assignment or deed of trust, and seeks to set it aside on the . ground that it is fraudulent and void, he is at liberty to proceed against the fraudulent assignee or trustee who is the holder of the legal estate in the property, without joining the cestui que trust,'' as laid down in Rogers v. Rogers, 3 Paige’s Ch. R., 379; but, as there stated, there are exceptions to this rule.
The amended bill does not seek to avoid the assignment and deed by reason of anything appearing on the face of either as
The decree on the cross appeal is affirmed. The decree on the direct appeal is reversed, and the cause remanded, with leave to amend the pleadings in conformity with this opinion.
Decree accordingly.