Guggenheimer & Adelsdorf v. Groeschel

Citations

• 23 S.C. 274
• 1885 S.C. LEXIS 102

Syllabus

<p>1. Creditors having entered into a composition with their debtor after an. assignment made by him of all his property for their benefit, the assignment was thereby vacated, and the property restored to the debtor; and the assignee could not thereafter seize such property.</p> <p>2. An insolvent living debtor having made no appropriation of his property to the payment of his debts, and there being no outstanding liens, his creditors cannot by action subject his property to distribution among his creditors; but such an action having been prosecuted without objection on the part of the debtor, the court treated the case as if an assignment had been made.</p> <p>3. There being no liens and no preferred creditors, the property of the debtor must be distributed ratably among all the creditors.</p> <p>4. Where creditors, who have entered into a composition with their debtor, receive from him an amount in excess of their share under the composition deed, it is no fraud upon subsequent creditors; and under a subsequent assignment they are entitled to demand and receive their dividend upon a new debt, without accounting to subsequent creditors for the excess so received on their first debt.</p> <p>5. Where a creditor surrenders his preference under a former assignment, he is not thereby estopped from claiming his debt under a subsequent assignment by his debtor.</p> <p>6. Claims having been established before a referee, under a call for creditors, and there being no dispute as to the amounts due upon the several claims, it was error to direct the creditors to be again notified to present and prove their demands.</p>