69 Tenn. 476 | Tenn. | 1878
delivered the opinion of the court.
On the 25th of March, 1871, the firm of Stine & Birmingham, as creditors of G. Cohn, filed their at
Subsequently, the present bill was filed by the three sureties on the replevin bond above named. They charge that they executed the replevin bond referred to, upon the condition that a transfer should be made to them of said stock of goods, and that a transfer was made to them — by whom, the bill does not charge;
It appears from the proof, however, that the receiver had paid the proceeds of the goods on the decree of Douglas & Co. before an injunction was obtained; and further, that complainants have paid the decree against them to Stine & Birmingham. The Chancellor gave a decree in favor of the complainants against Douglas & Co., for the 'amount paid by complainants to Stine & Birmingham.
The question principally discussed by counsel is, as to which party has priority of lien ? The complainants under their assignment from B. Adam, or Douglas & Co. under their attachment; and the difficulty
This would be a question of interest, if both partes claimed title from the same person; but the complainants claim title under their assignment from Adam, and Douglas & Co. claim by virtue of their attachment against Cohn. If the title of Adam was not valid against the attaching creditors of Cohn, complainants could acquire no higher title than Adam’s; and the prior registration of the assignment would not aid them.
It was adjudged in the former causes, that the purchase of the goods by Adam from Cohn was fraudulent and void as to the attaching creditors of Cohn; and as against them Adam acquired no title. As long as this decree remains in force, it is difficult to see how these complainants could have acquired a title or lien from Adam, superior to the claims of Stine & Birmingham or Douglas & Co. They are certainly not innocent purchasers for value.
It is objected, that complainants were not parties to the former causes, and, therefore, not bound by the decree. Their principal, Adam, was a party to both causes. They were themselves parties to the first cause by being sureties on the replevin bond, so far as to be bound by the decree against them; and two of the present complainants were, by name, made defendant* to Douglas & Co.’s bill; besides, the complainants do
But it is assumed in the bill, that independent of their assignment from Adam, the complainants ought not to be held bound on their replevin bond for the debt of Stine & Birmingham, and at the same time, the goods taken for the debt of Douglas & Co. That the goods having been replevied in the first case, should not be subject to another attachment against Cohn, as this would, in effect, be requiring Adam or his sureties to pay for the goods twice. This was a question properly arising in the first case. It was a matter to be presented as a defense to the second attachment bill.
The facts upon which the question arose, were presented, and the court hearing the two causes together, held Adam and his sureties on the replevin bond liable for the debt of Stine & Birmingham, and applied the proceeds of the goods to the debt of Douglas & Co. The parties necessary to make the adjudication binding, was before the court and they did not appeal from the decree.
The present bill, in reality, prays a reversal or correction of that decree. It is clear, however, that it cannot be done in this mode. Besides, the former
The decree of the Chancellor, in our opinion, is in every respect erroneous. It will, therefore, be reversed and the bill dismissed, with costs.