53 S.C. 539 | S.C. | 1898
The opinion of the Court was delivered by
On the 27th of April, 1894, F. O. London, an insolvent merchant, executed two mortgages on
As to the accounting. The referee, construing the decree of Judge Watts to require defendants to account for the proceeds of the sale of the goods, &c., as made by them after May 4, 1894, held defendants accountable as follows:
To net amount arising from sale of stock.$ 536 22
Amount arising from sale of rolling stock.... 120 00
*542 Amount arising- from collections on F. O.
London accounts. 481 30
Amount John R. London accounts. 206 99
Amount Mary B. Moore accounts. 72 80
Amount to open accounts and balance on ledger of London & Moore. 113 58
Total.$1,530 89
Credited by amounts paid for collecting, taxes, and wages. 99 26
Total amount for which the defendants should
account to this Court is.$1,431 63
The defendants excepted to this report, alleging error: (1) In finding that the defendants should account for any of the proceeds of the property transferred to them by F. O. London, May 4, 1894. (2) In finding that defendants should account for any of the items in the report except the item of $481.30, amount arising from collections on F. O. London’s accounts. (3) In not finding that F. O. London was entitled to receive $500 from said funds as a homestead.
The Circuit Court. Hon. W. C. Benet, overruled the exceptions of defendants. In sustaining the exceptions of plaintiff, his Honor held, in reference to the matter of accounting: (1) That the referee erred in not charging the defendants, J. R. London and M. B. Moore, with the sum of $1,345.84, and interest thereon from May 4, 1894, the same being the price at which defendants took the stock, &c., after a full inventory and valuation. (2) That the defendants having intermixed the goods of F. O. London coming into their hands with other goods of their own, so that the mass of goods and sales thereof became indistinguishable, it was error to adopt the method of accounting by supposed retail sales. (3) That it was error to allow the defendant, J. R. London, to testify as to sales of goods at retail in contradiction of the allegations of his answer in the cause. (4) That interest should be charged against the de
claim. We concur in this. The Court did not take charge of the estate of F. O. London for the purpose of administration until the filing of the decree of Judge Watts, January 14th, 1897, when creditors were called in to establish their claims, and the assets then brought into Court were not the specific property mortgaged, but the liability of defendants to account for the proceeds thereof, they having disposed of and appropriated the mortgaged property. If the mortgaged property had been brought into Court and sold under its order, a different question would be presented, as to whether the mortgages to J. G. Suther and J. A. Durham & Co., executed after the void mortgages to defendants were executed, but before sequestration of the property by the Court, constitute liens upon the fund in Court. Ex parte Spragins, 44 S. C., 65.
4. The account of J. R. London against F. O. London for $405.51. This account was from March 19, 1894, to December, 1896. This claim, except for the item of cash loaned March 19, 1894, $50, was rejected by the Circuit Court on the ground that the items were for goods purchased after the date of F. O. London’s assignment on April 27th, 1894. This was error, for reasons already stated. The sixth exception is, therefore, sustained.
The judgment of the Circuit Court is modified, as herein above stated, and the case is remanded for further proceedings, in accordance with the principles herein announced.