Montgomery v. Goodbar & Co.

69 Miss. 333 | Miss. | 1891

Woods, J.,

delivered the opinion of the court.

While this case has been thoroughly and repeatedly examined, and every question raised carefully considered, we dispose of it upon one point only — a point which conclusively determines the controversy in its present aspect.

Confessedly, Montgomery, the assignor, reserved $ 100 of the estate, which, the deed of assignment purported to convey. That this avoids the deed is no longer open to dispute in this state. All contention on this point was finally put to rest in the case of Marks v. Bradley, ante, 1. Said Judge Cooper in that case, speaking for the court: “ It might be sufficient for the disposition of this case to say that the reservation by N. H. Bradley of a part of the proceeds of the policy of insurance, which was the property of the firm, was sufficient to avoid the assignment, because it was an act done at the time and as a part of the assignment, the necessary consequence of which was to prevent the assignment from operating upon the property according to its professed purpose.”

This determination concludes the controversy, and we find it needless to pass upon any of the numerous other questions presented.

Complaint is made that a judgment for condemnation and sale of the property, and payment of appellees’ demand out of the proceeds, has been entered. The judgment is the usual one in such cases, the attachment issue having been found for the plaintiff, followed by a judgment against the defendant for the debt sued for; but the judgment will not, and should not, be fully executed until the remaining claimant’s issue shall have been determined.

Affirmed.