39 S.C. 498 | S.C. | 1893
The opinion of the court was delivered by
On the 27th of November, 1891, N. C. Dacus and M. M. Jordan, copartners in trade under the name and style of Dacus & Jordan, executed an assignment to J. C. Rogers of all their partnership property for the benefit of their partnership creditors. The deed of assignment provided amongst other things, after providing for the payment of all proper costs and charges incurred in preparing and executing said assignment, as follows: “And then if the money so realized be insufficient to pay all the creditors of the said Dacus & Jordan, then, in trust, first to pay any debts due the public, and the debts of such of the creditors of the said Dacus & Jordan as may, within sixty days from the date hereof, accept the terms of this assignment and execute a release of their claims against the said Dacus & Jordan, and that the balance, after paying said debts, be distributed among the other creditors of said Dacus & Jordan pro rata, without preference or priority.”
It appears from the report of the master, to whom it was referred to hear and determine the issues of law and fact, and to call in all the creditors of Dacus & Jordan to prove their demands before him, that within the prescribed time some of the creditors, to wit: J. C. Rogers, A. M. Dacus, and R. B. Ligón, and J. B. Lewis, duly accepted the terms of the assignment
It also appeared that at the March term, 1892, of the Court of Common Pleas for Greenville County, Smith & Stoughton, and others of the creditors of Dacus & Jordan, brought actions against Dacus & Jordan, to which no answers were filed, and they recovered judgments by default, which were duly entered on the 11th of April, 1892, and transcripts thereof were duly filed, on the same day, in the County of Anderson, where, it seems, N. C. Dacus, one of the members of the firm of Dacus & Jordan, individually owned certain property — real estate. In the meantime, however, N. C. Dacus, on the 7th of April, 1892, confessed judgment in favor of J. C. Eogers for the sum of $635, and a transcript of the same was duly filed in the County of Anderson on the same day. This does not seem to be one of the claims proved against Dacus & Jordan, under the call for creditors, as it does not correspond in amount with either of the claims so proved; and hence we suppose that it was a claim held by Eogers against N. C. Dacus individually, and not a claim against the partnership; though, under the view which we take, it is a matter of no consequence whether our supposition be well or ill founded.
It further appeared that on the-day of December, 1891,
The master found, amongst other things, as matter of law, that the parties named above, having accepted and executed releases within the time prescribed, were entitled to be first paid (after expenses, &c.), and that Hurst, Purnell & Co. and the other creditors named in the notice above set out, not having executed releases within the prescribed time, could not be placed in that class. To this report several of the parties filed exceptions, and the case was heard by his honor, Judge Fraser, upon the report and exceptions, who rendered his decree, sustaining some and overruling others of the exceptions, as may be seen by reference to the exceptions and decree thereon set out in the “Case.” The decree concluded in these words: “It is, therefore, ordered and adjudged, that in all respects, except as indicated above, the report be confirmed, and that parties have leave to apply for proper orders to carry out the same. Questions not herein passed upon reserved. It is further ordered, that the time for creditors to come in and establish their claims, under the previous order of the court, be extended to the first day of October next.”
To this decree the following notice of exceptions was given in due time, to wit: “For the purposes of appeal to the Supreme Court from the final decree in this cause, the defendants, Hurst, Purnell & Co., in behalf of themselves and all others of the creditors of Dacus & Jordan who occupy the same position, except” to the decree of Judge Fraser, upon two grounds, which are set out in the record, but need not be
It seems that Judge Fraser in his decree recommitted the report to the master for two purposes only, so far as we can discover: first, to ascertain the correct amount due Smith & Stoughton; second, to extend the time allowed creditors to come in and prove their claims. In accordance with this portion of the decree, the master made a second report, ascertaining the correct amount due Smith & Stoughton, and reporting other claims established. This report came before his honor, Judge Aldrich, with exceptions thereto, as we presume, though none are set out in the “Case,” and Judge Aldrich rendered his decree, confirming this second report of the master, and directing, amongst other things, that the assignee and agent of the creditors do pay out the assets to the several creditors in accordance with their rights as ascertained by the decree of Judge Fraser. Notice of appeal from this decree was given by Messrs. Perry & Heyward, as attorneys for the defendants; but the only
Coming, then, to a consideration of the questions presented by the exceptions, we propose to take them up in what seems to be their logical order, without regard to the order in which they are presented in the record. First, whether there was any error on the part of Judge Fraser in holding that there was no good reason why the assignment should be set aside. This involves two inquiries: first, whether it was void as a partial assignment requiring releases; second, whether it was rendered void on account of the conduct of the parties, N. C. Dacus and J. C. Bogers, evincing an intention to give J. C. Bogers an unlawful preference, by the terms of the assignment and the confession of judgment.
The j udgment of this court is, that the j udgments both of Judge Fraser and Judge Aldrich be affirmed.