Meinhard Bros. v. Strickland

Citations

• 29 S.C. 491
• 7 S.E. 838
• 1888 S.C. LEXIS 162

Syllabus

<p>1. An insolvent debtor may prefer a creditor by bona fide mortgages, if they are intended merely as securities, but if such mortgages are really designed to operate as the means of transferring the debtor’s property to one or more of his creditors in preference of others, then they must be regarded as in effect, though not in form, an assign-meet, and null and void, because within the mischief inhibited by section 2014, General Statutes. It involves mainly a question of fact— the intention of the parties.</p> <p>2. Where mortgages were executed by an insolvent debtor on his entire stock of goods to his wife and another creditor, payable on demand and thereby anticipating debts not maturing for one and two years, and these mortgages were almost instantly foreclosed — this court concurred with the Circuit Judge that these mortgages were given for the purpose of enabling favored creditors to close up speedily the debtor’s business and obtain the first fruits of the sale of his property, and therefore were a device to evade the provisions of the assignment act.</p> <p>3. Matters not brought to the attention of the court below, cannot properly be brought here for review.</p> <p>4. Admissions in an answer are sufficient legal evidence on a motion for injunction and the appointment of a receiver.</p> <p>5. In action assailing a deed of assignment or instruments which in legal effect are an assignment, the creditor is not required first to obtain judgment and return of nulla bona thereon.</p> <p>6. A Circuit Judge may, in his discretion, dispense with security on an injunction bond.</p> <p>7. Security for costs should not be required of a non-resident plaintiff, except upon application on due notice.</p> <p>8. Mortgagees under invalid instruments are not owners of the chattels purported to be mortgaged.</p> <p>9. An exception in the words “that his honor erred in not dismissing the proceedings” is too general to be considered.</p>