Dogan v. Cole

63 Miss. 153 | Miss. | 1885

Cooper, C. J.,

delivered the opinion of the court.

The appellant being in embarrassed circumstances, desired to make an assignment of his property for the benefit of his creditors, giving preferences to certain ones of them, among whom was the appellee, and distributing equally the remainder to his other creditors. He was a merchant, and the greater part of his estate consisted of a stock of goods in his store. In his opinion this stock of goods could be sold to better advantage by retailing them across the counter in the usual mode, and this mode of sale he proposed to direct to be followed in the assignment which he contemplated making. In this condition of affairs he sent for his attorneys, who repaired to his residence, where he was confined to his bed, accompanied by appellee and by the agent of another creditor. The appellee was one of the creditors whom the appellant had proposed to prefer in the contemplated assignment, and the agent of the other creditor was pressing to be included in the class of preferred creditors, if an assignment should be made, and threatening to attach if this was not done. At the consultation between these parties the attorney declared that the assignment which appellant desired to make would be invalid, that he would subject himself to attachment -by its execution, and that he had already rendered himself liable to attachment. Upon what ground this subjection to attachment was supposed to have arisen is not suggested by the record, but we assume it was either because the appellant had proposed to make the assignment, or because he had offered to pay one of his creditors the whole or a part of his debt by the delivery to him of twenty bags of coffee from his stock of goods. Be this as it may, the attorney advised that as the assignment could not be legally made, the appellant should consent that attachments might issue against his estate. There is some conflict of evidence as to whether the appellant consented to this; but since the testimony of the appellee was to the effect that he did, we must assume such to have been the ease. In this interview, at which the appellee was present and participated, all idea of making the assignment was abandoned, and, according to his evidence, it was agreed that he and others should secure their claims by suing out attachments. From the residence of the appellant the appellee went with the attorney, who' had been called in by appellant, to his office, where an affidavit was prepared, alleging that the appellant “has assigned or disposed of, or is about to assign or dispose of, his property or rights in action or some part thereof, with intent to defraud his creditors.” On this affidavit the attachment was issued.

The defendant traversed the ground for suing out the writ, and on this issue the question involved arises, which is whether it was permissible for the defendant to deny the rightfulness of the attachment to which he consented. The court below held, in effect, that the defendant was estopped to controvert the fact averred by the plaintiff’s affidavit, and there was a judgment in favor of the plaintiff.

There is no doubt that at and before the time when the affidavit was made for the writ the defendant had abandoned all idea of executing the assignment, and that this fact was well known to the plaintiff, who, according to his own testimony, resorted to the proceeding by attachment by agreement with the defendant—not because the defendant then intended to make any sort of transfer of his property, either honest or fraudulent, but because he had determined not to make the contemplated transfer, and to submit to attachment as the means of reaching the same end, to wit, the giving of a preference to the plaintiff so as to secure the payment of the debt due to him.

Taking the ease as made by the evidence for the plaintiff, and it is indisputably shown that the attachment was sued out, not because the defendant was about to make the transfer, which his counsel had advised would be fraudulent if made, but because he was not about to make it. We are unable to perceive in what respect the assignment would have been fraudulent if it had been made; but conceding that it would have been, all intention of executing it had been abandoned by the defendant, and in lieu of it the plaintiff was to sue out the attachment. There is, therefore, a total absence of any evidence tending to prove that the defendant, as a matter of fact, was about to do any of those things which the statute condemns, and the doing of which would subject him to attachment; or that the plaintiff believed that he was about so to do. There is no element of estoppel in the case. The plaintiff did not'believe that the defendant was about to dispose of his property with a fraudulent intent. He knew that he was not, and knowing this, he took such action as was permissible only to one who knew or believed the truth to be as declared in the affidavit. The right to resort to attachment cannot be acquired by contract between parties, much the less can they in that manner add a new ground to the statute for suing out such process. The statute declares that one who has made or is about to make a fraudulent transfer of his estate may be attached. The agreement between these parties, if in fact one was made, was that the plaintiff should attach because, on reflection, the defendant had determined not to make an assignment, which he had been advised would be fraudulent.

There was no allegation in the affidavit that the debt sued for had been fraudulently contracted, and all the evidence directed to that issue should have been excluded by the court on the objections made by the defendant.

The judgment is reversed and cause remanded.