15 S.C. 214 | S.C. | 1881
The opinion of the court was delivered by
On February 28th, 1857, J. Leroy Davis made an assignment to L. H. Massey for the benefit of his creditors. The deed of assignment provided that the judgments against Davis should be first paid; next, sundry debts for which Massey was liable as surety for Davis; and lastly, creditors generally. Massey accepted the trust, sold all the property and proceeded with the discharge of his duties as assignee until some time in 1861. After the close of the war Massey became insolvent, and, in 1869, was adjudged a bankrupt, and in 1876 removed to the State of North Carolina, where he has ever since resided. Before leaving the state Massey deposited with his attorney in York county the papers belonging to the assigned estate, including the uncollected assets. In January, 1877, William I. Clawson, claiming to be a creditor of Davis, as assignee of one of the judgments against him, filed an ex parte petition in the Court of Common Pleas for York county, stating, among other things, that the petitioner had frequently applied to Massey to obtain his consent to the. collection of the assets, but had been unable to do so, and praying “ that the said L. H. Massey may be removed from his trust, and that a suitable person be appointed in his place to take charge of and settle up the said estate.” Upon this petition the judge of the Sixth Circuit, within which the county of York is embraced, endoi'sed the following order: “ Upon hearing the petition, and on motion of C. E. Spencer, attorney pro pet., it is ordered that L. H. Massey be, and he is
One of the defences set up by the defendants is a denial that the plaintiff is the legal owner and holder of the note sued upon. The only evidence adduced to show plaintiff’s title to the note was the ex parte order above referred to removing Massey, the payee of the note, from the office of assignee, and appointing the plaintiff “ trustee of the creditors to settle the estate of the said J. Leroy Davis.” The Circuit judge holding that this order “ was not only irregular but utterly void, in so far as it attempts to vest in the present plaintiff title in and to said estate,” sustained this defence, and exception was duly taken. So that the fundamental question raised by this appeal is, whether an assignee can be removed from office and the legal title to the assets of the assigned estate transferred to another by a mere ex parte proceeding, of which the assignee has no notice.
Upon general principles, well recognized and founded in •reason as well as supported by the highest authority, it would seem to be clear that an order or judgment which purports to deprive one man of the title to property and vest it in another, is an absolute nullity, unless such order is made or judgment rendered in some action or proceeding to which the person whose title is thus divested has been made a party and has had an opportunity to be heard. The fact that Massey was a trustee can make no difference. He had the legal title and could not be deprived of it by a proceeding to which he was not a party, and of which he does not appear to have had any notice what
It is argued, however, that even conceding that the order removing Massey from the office of assignee añd appointing the plaintiff
The order removing Massey and appointing the plaintiff cannot be sustained, as has been argued here, under Section 3 of Chapter XCVII., General Statutes, page 477. That section only provides for the appointment of an agent by the creditors in case the assignee neglects or refuses to assemble the creditors within ten days after the execution of the deed of assignment for that purpose, and that the agent so appointed may apply to the judge of the Court of Common Pleas for an order authorizing him to take into his possession the property assigned, and sell or dispose of the same according to the terms of the deed of assignment. But
The plaintiff’s title to the note resting solely upon the ex parte order above referred to, which, we think, was an absolute nullity, his right to bring this action cannot be sustained.
Under this view of the ease the other questions suggested by this appeal cannot arise and need not, therefore, be, considered. Indeed it would, perhaps, be improper now to do so, for if, as we have seen, the plaintiff has no right to bring this action, any adjudication of those questions now would not bind the legal owner of the note, who is not a party to this case, and his rights ought not to be passed upon until he has the opportunity to be heard.
The judgment of this court is that the judgment of the Circuit Court be affirmed.