Magovern & Co. v. Richard

Citations

• 27 S.C. 272
• 3 S.E. 340
• 1887 S.C. LEXIS 132

Syllabus

<p>1. An insolvent debtor has the right to prefer one of his creditors, provided it is not done in a general assignment for the benefit of all his creditors, and, provided further, it is not accepted by the creditor with knowledge of the debtor's insolvency, within ninety days before such debtor makes a general assignment. An ordinary mortgage executed by an insolvent debtor with intent to secure and prefer one creditor over others and covering a large portion of his property, is not void under the assignment act, Gen. Stat., $ 2014.</p> <p>2. A decree should not be sustained where it is based upon a ground not raised by the pleadings.</p> <p>3. Where a mortgage is based upon a valuable consideration and is not taken for the purpose of hindering, defeating, or delaying creditors, it is not void under the statute of Elizabeth, even though the mortgagor was insolvent, the mortgage embraced all of the debtor’s'visible property, and by agreement was not to be recorded for 40 days.</p> <p>4. Bindings of fact by the Circuit Judge from testimony heard by him, reversed.</p> <p>Mk. Justice McGowan, assenting.</p>