Austin, Nichols & Co. v. Morris

Citations

• 23 S.C. 393
• 1885 S.C. LEXIS 116

Syllabus

<p>1. Is nulla bona return an essential prerequisite to creditors seeking equitable relief against a conveyance made by an insolvent debtor for the purpose of defrauding his creditors ?</p> <p>2. A mortgage for a past due debt, not executed bona fide for the purpose of securing its payment, but with intent to transfer all of the debtor’s property to one or more of his creditors to the exclusion of others, is, in effect, an assignment giving preferences, and therefore null and void under section 2014 of General Statutes.</p> <p>3. Such a transaction may be assailed by creditors, even though their demands be not reduced to judgment. Gen. Stat, $ 2016.</p> <p>4. Where a debtor, with the purpose of evading the assignment law, and of transferring all his estate to certain preferred creditors to the exclusion of all others, gave chattel mortgages at short date to three of his creditors for past due debts, covering all his tangible property, and on default consented to a sale in bulk or in parcels, at their option, and on insufficient notice, such mortgages were hold void at the suit of the unpreferred creditors.</p> <p>5. Findings of fact by the Circuit Judge upon testimony taken before him approved.</p> <p>Mr. Chief Justice Simpson dissenting.</p>