McDowell v. Read

| La. | Apr 15, 1848

The judgment of the court was pronounced by

Eustis, C. J.

A fieri facias having been issued on a judgment obtained by the plaintiffs against the defendants, in November, 1845, process of garnishment was taken out against Wm. S. Mount and Co. garnishees, in order to subject the effects of the defendants in their hands to the writ. Wm. S. Mount answered the interrogatories propounded, and acknowledged that certain property had been conveyed to him, situated in the State of Mississippi, in trust for the benefit of certain creditors. On these answers of the garnishee the plaintiffs filed their petition to set aside'and annul the conveyances made by the defendants to the garnishee, on the ground of their having been made in fraud of the rights of the plaintiffs as creditors, and in violation of our Jaws. On this petition issue was joined by the garnishee; there was judgment in his favor, and the plaintiffs have appealed.

We have had this case along time under advisement, and, after a thorough investigation of the subject, we are forced to dissent from the conclusions of the learned judge before whom the cause was tried. The argument at bar has been confined to the validity of two deeds of trust, and the power of the court over them, under the case as presented. There does not,appear to bo any dispute as’to the facts of the caso.

The deeds were executed in the city of New Orleans, on the 10th of May, 1845. The first purports to be made by Thomas J. Read of the city of Louisville, Kentucky, and John A. Read of New Orleans, on the first part, certain creditors of the firms of Thomas J. Read and Son of Louisville, and Thomas J. Read and Son and Company of New Orleans, on the second part, and William S. Mount of the third part. It conveys to Mount a plantation and slaves in Washington county, Mississippi, in trust for the benefit of the creditors mentioned. The second deed of trust purports to be made by Thomas J. Read, John A. Read, and Robert Y. Black, styling themselves merchants, commercial copartners, trading under the firm of Thomas J. Read, Son and Company, in the city of New Orleans ; it conveys a lot of ground in Yazoo City, Mississippi, is of the same date, for the same.purposes, and on the same trusts, as the first. They are both signed by the parties of the first part, and by Mount, the trustee, and were afterwards confirmed by the preferred creditors. The trustee was not authorized to take possession ; but the grantors were to be permitted to retain it, until the 1st of January, 1847, when the sale of the property was to take place for cash, for the payment of ¡the debts which should then be unsatisfied, at the request of the creditors or any one of them.

This cause was tried in February, 1847, subsequently to the -time at which he was empowered to make the sales, and the record affords no evidence whether they have beemmade or not. The prayer of'the petition is that, the deeds of trust be annulled, and the garnishee be decreed to be bound to account to the petitioners as seizing.creditors, for the property to himiilegally.conveyed. The district judge considered the case as confined to these issues, and we think correctly.

In relation to annulling the deeds of trust, the judge was of opinion that, the situation of the real property out of the jurisdiction ,of the State, was an obstacle to the court’s rendering any judgment, where.the objectwas to recover it. We think the case referred to by the counsel for the plaintiffs, establishes the principle that, where a court is called upon to enforce a right, it may avail itself of its jurisdiction over the person todo justice relative to a subject matter beyond.its territorial jurisdiction, though lands be effected by the decree. The contract made here between the defendants and Mount is the-subject matter upon which the court is called upon to act. Its validity is drawn in question. The responsibility of the trustee to other creditors than those provided for, depends upon its legality. Even if the judgment to be rendered should not be efficient in the State where the properly is situated, that fact, were it ascertained, we think would not be sufficient to authorize the court to withhold its action upon the contract.

We think the determination of this case would be necessarily effected by the fact of the sales having .been made by the trustee under the deeds of trust. In assuming them to have been made, we might do him injustice ; and, as we think the District Court erred in rendering an absolute judgment against the plaintiffs, we prefer to remand the .cause for a new trial, without being committed as to any future course, to closing it by a final judgment on a state of facts presented by the record, which may not be consistent with their present state, nor subject to the same principles.

The judgment of the District Court is, therefore, reversed, and the case remanded for a new trial; the appellee paying the costs of this appeal.