Richardson v. Stapleton

Citations

• 60 Miss. 97

Syllabus

<p>Assignment. Deed fraudulent upon its face. Direction to sell choses in action. Attachment.</p> <p>S. & Bro., having become insolvent, executed a deed of assignment to W., as trustee for their creditors, who were ranged in two classes, designated “No. 1,” and “No. 2,” the former being preferred. The property conveyed consisted of a stock of goods valued at $9,000, notes, accounts, and deeds of trust valued at $7,000, a horse and buggy at $150, and $24 in cash. The deed contained this provision: “ If at the end of nine months there shall remain any of said goods, wares, and merchandise, or other property of said parties [the grantors] remaining in his [the trustee’s] hands unsold, and there be debts still unpaid and due by said parties of the first part, said party of the second part shall proceed to sell said remaining property and evidences of debt to the highest bidder for cash, after giving ten. days’ notice of such sale by posting in three or more public places,” etc. B. & M., creditors, being in class No. 2 of the assignment, sued out an attachment against S. & Bro., a few hours after the execution of the deed of assignment. The attachment was based-upon the ground, amongst others, that the defendants “had assigned or disposed of, or were about to assign, or dispose of, their property or rights in action, or some part thereof, with intent to defraud their creditors.” The defendants pleaded in abatement, and upon the trial the deed of assignment was adduced in evidence, and the plaintiffs asked the court to instruct the jury that it was void upon its face; but the court refused to give the instruction. Held, that the right of the creditors to subject the property of the assignors to their demands by legal process, or to have it surrendered to them without limitations or restrictions prejudicial to their interests, was infringed by the above quoted clause of the deed of assignment, which requires the assignee to sell the choses in action before the lapse of tim