Berryman v. Sullivan

Citations

• 21 Miss. 65

Syllabus

<p>The bill alleged that a debt which the complainant, an attaching creditor, sought to reach, was claimed by a third party, under an assignment which was a mere cloak to hide the real ownership, which still remained in the assignor ; the assignee denied the fraud, and asserted that the assignment was bond fide, to secure him as indorser for the assignor, and to secure other debts : Held, that the answer being responsive to the bill, and the proof not being sufficient to overthrow it, the bill must be dismissed.</p> <p>And in such case it is not incumbent upon the assignee to set forth the particulars of his liability as indorser, to secure which the debt has been assigned ; the bill not being filed for a settlement of accounts between the assignor and assignee, but directed simply to the fraud in the assignment; the court would not entertain the question whether the indorser was under liability yet or not, the bill not having been filed with such object, nor the proof taken for such purpose.</p> <p>S., a creditor of Y. & M., filed his bill against them and B. & H., alleging that B. had a judgment in this state against H., which was really the property of M., and that B. and M. were non-residents, and sought to subject H.’s debt to the payment of his claim against Y. & M. ; B. answered, denying that his judgment against H. was M.’s property, but stated it had been assigned to him by M., to secure him as indorser for M., and also to secure other enumerated debts, including one due by M. to Y., M.’s codebtorto S.; to secure which debts, also, other property had been assigned to him (B.) by M., which other property had been sold and produced sufficient nearly to pay off those debts : Held, that before S. could claim the appropriation of the judgment against H., to the satisfaction of Y. & M.’s debt to him, on the ground that M. had assigned it to B. in part to secure Y., he must show that the debt from M. to Y. was still subsisting, and was not among the debts paid by