44 S.C. 65 | S.C. | 1895
The opinion of the court was delivered by
The action in the case of Mann v. Poole was commenced on the 21st of June, 1892, by the plaintiffs on behalf of themselves and of all others, credit
The case came on for hearing on its merits before his honor, Judge Norton, who, on the 3d of May, 1893, filed a decree, the nature and scope of which may be seen by reference to the case of Mann v. JPoole, reported in 40 S. O., 1. Sufficient to say here, that, amongst other things, the deed of assignment was set aside, and Mr. Dial, named therein as assignee, was ordered to turn over to the receiver, then appointed, all the property embraced in said so-called deed of assignment, and if any of it had been sold, to pay over the proceeds of such sale to the receiver, reserving the question whether Mr. Dial should be entitled to any compensation, and if so, how much, for his services while
After the appeal was finally disposed of, an order was granted by his honor, Judge Townsend, consented to in writing by all parties, the date of which is not appended to said order, but it is stated in the “Case” that it was passed on the 12th of February, 1894, directing “that the defendant, N. B. Dial, heretofore acting in the supposed capacity of assignee of the defendant, J. T. Poole, under a purported deed of assignment, executed by the said Poole to the said N. B. Dial on May 18th, 1892, do, and he is hereby directed to, turn over to H. W. Anderson, as receiver, appointed in the above stated action, all the funds received by the said N. B. Dial from the sale and collections made by him under said supposed deed, excepting such pay- • ments and disbursements as were made by the said N. B. Dial while acting in his supposed capacity as said assignee, including the fee of $500 allowed and paid to F. P. McGowan, and the sum of $1,800 paid to Shattuck & Hoffman.” The order further directed that the receiver “do, out of the funds arising from the sale of the stock of goods,” pay certain sums of monéy, amongst which are “the fees of the plaintiff’s attorneys for services rendered in behalf of creditors, the said fees to be hereafter determined, and to N. B. Dial, Esq., such compensation, if any, as may be allowed him, to be hereafter determined.”
It further appears that certain of the creditors of J. T. Poole recovered judgments against him before the 21st of June, 1892, when the action of Mann v. Poole was commenced; certain others of the creditors of said Poole, amongst whom are the parties named as appellants in the title of this case, recovered their judgments after the commencement of said action, but before the decree of Judge Norton appointing a receiver; while the plaintiffs, Mann & Go., recovered their judgment by the
The clerk made his report on the claims presented, together with the testimony, and upon such report the case was heard by his honor, Judge Watts, who rendered his decree, a copy of which should be incorporated in the report of this case, and from this decree several of the parties have appealed upon the several grounds set out in the record, which need not be stated here, as several of them are but repetitions of others; and we, therefore, propose to consider the several questions which we understand to be presented by these grounds rather than to take up the grounds seriatim. These questions are: 1st. What compensation, if any, should be allowed N. B. Dial, Esq., for his services while acting as assignee under the deed of assignment which has been set aside? 2d. What fees, if any, shall be allowed plaintiff’s attorneys, and out of what fund paid? 3d. In what order are the creditors who have established their demands against Poole entitled to be paid?
The third question is as to the order in which the judgment creditors are entitled to be paid out of the assets of the assigned estate in the hands of the receiver.. These judgment creditors may be divided into three classes: 1st. Those who obtained their judgments prior to the commencement of the action of Mann v. Poole. 2d. Those who obtained their judgments after the commencement of that action, but before the decree appointing a receiver to take charge of the assets of the estate of Poole, and administer the same under the order and direction of the court. 3d. The plaintiff’s judgment obtained at the same time as the decree appointing the receiver was made, and in the same case.
In the case of Gracey v. Davis, supra, which was stated to be a creditors’ bill, although the pleadings are not set out in the report of the case, and recognized as such by the provision for the payment of the fees of the solicitor “who brought the general bill on behalf of the creditors,” the rule was laid dowm by Dunkin, Ch., in delivering the opinion of the court, in the fol
It is true that Mr. Justice Nelson, in delivering the opinion of the"court in Wiswall v. Sampson, does say: “That where the subject-matter of the suit in equity is real estate, and which is taken into the possession of the court pending the litigation by the appointment of a receiver, or by sequestration, the title is bound from the filing of the bill, and any purchaser pendente lite,
The case of Meinhard v. Youngblood, 41 S. C., 312, has also been cited by counsel in the argument here in support of the view taken by the Circuit Judge. But an examination of that case will show that it differs widely from the present case. In that, case, certain of the creditors of Youngblood commenced action on their claims, and at the same time sued, out warrants of attachment, which were levied upon the property of Young-blood. Thereupon the plaintiffs, Meinhard Bros. & Co.,-commenced this action against Youngblood and the attaching creditors to set aside the attachments upon the ground of fraud, and soon thereafter obtained an order from his honor, Judge Wallace, enjoining and restraining the attaching creditors from prosecuting their suits and attachment proceedings. The defendants subsequently moved before Judge Wallace to vacate
We are, therefore, of opinion that the judgment creditors standing in the second class above stated, are entitled to priority iu the distribution of the proceeds of the sales of such pro-' perty as their judgments were a lien upon, after the liens of the judgment creditors standing in the first class are satisfied, in the order of the dates of the respective judgments held by the creditors standing in the second class; and we think that the Circuit Judge erred in holding otherwise.
The judgment of this court is, that the judgment of the Circuit Court be modified, in accordance with the views herein expressed; and that in all other respects the said judgment be affirmed. Let the case be remanded to the Circuit Court, for the purpose of carrying out the views herein announced.