85 Tenn. 368 | Tenn. | 1887
L. Lipman, a merchant owing debts amounting- to about $15,000, made a deed of assignment of his stock of goods and his book accounts to IT. Solinsky, as trustee. He secured in this deed all of his creditors equally. Certain of his creditors sued out and levied attachments upon this stock of merchandise, a few hours in
It will be unnecessary to further state the pleadings; the facts necessary to the determination of the several questions presented by them will appear in the subsequent parts of this opinion. The facts proven abundantly establish the charge that Lipman was, and had been for some time, fraudulently disposing of his property with the intent to hinder and defeat his creditors.
The deed of assignment secures, among the other claims secured therein, a debt of fl,200, stated to be due to Solinsky, the trustee. The cross-bill, and original attack this debt as colorable. The proof overwhelmingly establishes this charge. Its fictitious character is made manifest. The attaching creditors, in their ci’oss-bill, charge that So
"When a fraudulent vendee has so concealed or disposed of the property that creditors cannot reach or identify it, the creditor may, in equity at least, recover the proceeds or value thereof. The Chancellor gave a decree for the value of these goods directly traced to Solinsky, and we affirm his action.
The attachments levied before the registration of the deed of assignment were properly sued out
Spencer, Chief Justice, in delivering the opinion of the Court in the case of Haggerty v. Wilbur, 16 Johns., 288, said:
“There can be no doubt that the Sheriff had authority to break open the store and seize the goods. The privilege which the law allows to a man’s habitation, and which precludes the Sheriff from entering unless the outer door be open, either*374 to arrest the party or to take liis goods on execution, does not extend to a store or barn disconnected with the dwelling-house and forming no part of the curtilage.”
The Chancellor was in error in holding these levies invalid because of the breaking into the store-house.
We think the attachments levied on the day following the registration of this deed of assignment are entitled to satisfaction in the order o£ their levy, after first paying those levied before the assignment. Although this deed of assignment purports to secure all of the creditors of the assignor equally, yet we think it was fraudulent in fact in view of all the facts of this case. The trustee to whom this deed was made had been guilty of aiding the assignor in his previous fraudulent disposition of his assets. A considerable lot of the goods of the assignor have been positively traced to his possession. There are circumstances in the record strongly indicative of his having fraudulently obtained other goods. A fictitious debt of $1,200 is secured to him in the assignment. He was the brother-in-law of the debtor. The deed of assignment contains no inventory of the goods conveyed and no list of the notes and accounts. No detailed schedule is annexed. There is nothing to indicate the quantity or the value of the property assigned. The bond of a trustee of this character would be very slight protection to honest creditors secured by such an
There is nothing in the point made in brief of counsel that the attaching creditors have abandoned their attachments sued out at law. They were enjoined under the bill of Solinsky and Lip-man from prosecuting their attachment suits. The very purpose of the bill of Solinsky was to determine the validity of the deed of assignment as
The costs of both the original bills and of the cross-bill will be paid by Solinsky and L. Lip-man, and of this appeal will be paid by H. Solinsky and his sureties. The case will be remanded for the execution of this decree. The claim of Solinsky to be allowed his disbursement for counsel fees incurred in this litigation will of course be disallowed. The burden of paying for this litigation cannot be thrown upon the fund to which the attaching creditors are entitled. Some of the” attaching creditors did not appeal from the decree of the Chancellor ■maintaining the assignment as against all of the attaching creditors. The decree to be draAvn will of course be limited to the parties now before the Court.