29 Md. 311 | Md. | 1868
delivered the opinion of the court:
Upon careful examination we discover nothing in this case to distinguish it from that of Sanderson v. Stockdale, 11 Md. 563; arid, of course, the same relief that was given in that case should be afforded in this. It is true, the case of Sanderson v. Stockdale was heard on bill and exhibits only, and, in the case before us, the defendants have all filed their answers, denying most of the material allegations of the bill; but such denials have been overcome or neutralized by the *facts and circumstances proved in the cause. There is no question made here of the right of partners, where the firm is solvent, to convert, by their own acts, the joint property of the partnership into the separate property of individuals, or into the joint property of two or more partners. This, it is conceded, may be done. And if done bona ñde, and for valuable consideration, it will bind and preclude the antecedent partnership creditors.
But it is contended, that when such transfers are fraudulent, and calculated to hinder and delay the partnership creditors, they are void as against such creditors, and will not be allowed
But it is said that the firm of J. B. Charron & Co., had, at the time of this change, assets amply sufficient to pay all of its debts; and that provision was made for'their liquidation by the appointment of Posey, the agent of the firm, to collect the outstanding debts and to pay off the creditors. To answer this .suggestion, let us recall to mind the indisputable facts. According to the answers of J. B. Charron, and J. P. Posey, with but slight discrepancy, the indebtedness of the firm amounted to about $59,000. The stock in trade was valued at $15,000; and the debts due the firm were supposed to amount to about $102,-000. These debts, however, were mostly due the firm from persons of the Southern States; and by reason of the distressed and embarrassed condition of the people, and the operation of stay laws, in those States, a large portion of the debts were
If it had been at all doubtful at the time, as to what was the real purpose and design of this change in February, 1867, we think subsequent events make it manifest beyond question. Both John B. Charron and Posey, remain in the new styled firm, the former represented by his minor son, and the latter as an ostensible partner; and although it was said to be understood in February, 1867, when Richard withdrew, that Posey alone was to assume the duty of liquidation, it seems that J. B. Charron, shared it with him;, and all the moneys that were subsequently collected, were taken into the new concern, and used by it; and only such creditors were paid, as the parties deemed it to their interest to pay. Subsequently, when the neglected creditors began' to complain, and after Posey had managed to get his entire interest out of the concern, and in fact stood in debt to it, he, in September, 1867, went through the form of retiring, though upon condition that he was to be
It is said, however, that whatever fraudulent purpose may have been contemplated by John B. Charron and J. P. Posey, that Claude C. Charron and Townsend, the parties constituí
It was contended in argument, that whatever might be thought to be the true character of the transaction of the partners in transferring the partnership property, there could be no proceeding had in a Court of Equity, for the purpose of avoiding such transfers until after judgment and execution at law, creating a lien upon such property. But we think there is no force in the objection. The case is plainly embraced by the very terms of the Code of Pub. Gen. Laws, Art. 16, sec. 35, which declares that “ in no case of a proceeding in equity to vacate any conveyance, or contract, or other act, as fraudulent against creditors, shall it be necessary for any creditor or plaintiff in the cause to have obtained a judgment at law on his demand, in order to the relief sought in the case.” Besides, the same objection was raised in Sanderson v. Stockdale, 11 Md. 564, and the court overruled it, distinguishing that case from the case of Uhl v. Dillon, to Md. 500.
It follows, from what we have said, that we regard the case as a proper one for both an injunction and a receiver, in accordance with the prayer of the bill. We shall, therefore, affirm the order of the 2nd of April, 1868, from which the several appeals have been taken, so far as it continued the injunction against John B. Charron, Stephen Richard, and John P. Posey, and granted the prayer for a receiver as to the firm of J. B. Charron & Co., and shall reverse said order so far as it dissolved the injunction against Claude C. Charron and John M. Townsend, and the firms of Charron, Posey & Co., and Charron, Townsend & Co.; the question of the refusal to appoint a receiver, as to these latter firms, not being before us on this appeal, the cause will be remanded to the court below, that fur
Order affirmed in part, and reversed in part, and cause remanded for further proceedings.