Emerson v. Senter

Butler and Moores constituted a mercantile firm doing busi ness in the state of Arkansas under the name of A. Butler & Co. The former died on the seventeenth day of December, 1881, and thereafter, February 23, 1882, Moores, as surviving partner, executed a deed of assignment to Emerson, the plaintiff in error. The deed recited the death of Butler, the insufficiency of assets to discharge the partnership debts, and the desire of Moores, as surviving partner, to provide for their payment, so far as in his power, 'by an assignment of all the property belonging to him as such surviving partner.' The grantor, for the purposes named, and in consideration of one dollar paid by the grantee, transferred and assigned to Emerson, his successors and assigns, 'all the stock in trade, goods, wares, and merchandise, debts, choses in action, property, and effects of every description, belonging to the said firm of A. Butler & Co.,' or to the grantor, 'as such surviving partner, mentioned, contained, or referred to in the schedule hereunto annexed.' The conveyance was in trust that the assignee take possession of the property described, 'sell the same as provided by law, and, with all reasonable dispatch,' collect the debts and demands assigned, and apply the proceeds (1) to pay all the just and reasonable expenses, costs, and charges of executing the assignment, and carrying into effect the trust thereby created; (2) to pay in full, if the residue of the proceeds is sufficient for that purpose, all the debts and liabilities then due, or to become due, from Moores, as surviving partner, with interest thereon, to certain preferred creditors, among whom were the defendants in error, Senter & Co.; (3) to apply to balance to all other debts and liabilities of A. Butler & Co., or of Moores, as surviving partner; (4) to repay the latter, as surviving partner, whatever may remain after meeting the costs and expenses of the trust, and the amounts due respectively to other creditors. The deed invested the assignee with all the power and authority necessary to the full execution of the trust created by it. It was accepted by Emerson, and by some of the preferred creditors therein mentioned.

The debts of the firm largely exceeded its assets, and Moores individually, as well as surviving partner, was insolvent when he made the assignment. In addition to the recitals in the deed of a desire to make an assignment of all the property in his hands as surviving partner, Moores represented to his creditors that he had done so. Nevertheless, for the purpose of hindering and cheating his creditors, he omitted from his schedule $500 worth of goods which belonged to him as surviving partner; and with like intent, left out of the schedule, and withheld from his assignee, $1,000 in cash and other property, which he held as surviving partner, appropriating to his own use the property so omitted from the schedule. Neither the assignee nor the preferred creditors who accepted the deed had any knowledge of the alleged fraud of the grantor until after their acceptance of its provisions. Upon an issue formed between Emerson, asserting the validity of the deed, and Senter & Co., who, as creditors of the firm, attached the assigned effects as the property of the surviving partner, the deed of assignment was held to be void, and the claim of the assignee denied.

U. M. Rose, for plaintiff in error.

''Thos. C. McRae'', for defendant in error.

[Argument of Counsel from pages 5-7 intentionally omitted]

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court: