Kerrison v. Stewart

APPEAL from the Circuit Court of the United States for the District of South Carolina.

Edwin L. Kerrison and Herman Leiding, of Charleston, S.C.., May 1, 1867, conveyed to Charles Kerrison, in trust, the real estate in controversy in this suit, by deed, the material parts of which are as follows:--'This deed of two parts, made this first day of May, in the year of our Lord one thousand eight hundred and sixty-seven, between Edwin L. Kerrison and Herman Leiding, of the city of Charleston, in the State aforesaid, lately trading together as merchants, copartners, under the name and style of Kerrison & Leiding, of the first part, and Charles Kerrison, also formerly merchant, of the same place, of the second part, witnesseth: That whereas, with a view to enable them, the said Kerrison & Leiding, parties hereto of the first part, to resume some mercantile trade or business, a majority of their creditors, both in number and amount or value, have agreed to take their notes, dated the first day of December last, payable, with interest, from the first day of June, that was in A.D. 1865, two and three years after the said date, secured by a conveyance to an approved trustee of the real estate hereinafter fully and particularly mentioned and described, and intended to be conveyed to the said Charles Kerrison, hereto of the second part, in trust, for the better securing of the said notes, a schedule whereof, with the names of the said creditors and the respective amounts of the notes given to each of them, all bearing the date and payable on the days aforesaid, is hereunto annexed and made a part of these presents; and whereas all other the creditors of the said Kerrison & Leiding may be disposed to come in upon the footing of the said agreement and security, and in that event it is intended to secure to them that right, and also to provide for making the security more effectual.

'Now this deed further witnesseth, That the said Edwin L. Kerrison and Herman Leiding,. . . for the better securing their said notes, and such as may be given to their other creditors,. . . have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Charles Kerrison [here follows the description of all the property]. To have and to hold all and singular the premises unto the said Charles Kerrison, his heirs and assigns for ever,. . . in trust, nevertheless, in the first place, to hold the said premises as a security for the several and respective parties, creditors of the said Kerrison & Leiding, named in the first section of the schedule hereunto annexed, for the several and respective sums set opposite to their names, with interest, as above recited; and also for such other parties, creditors of the said Kerrison & Leiding, the names of which are, as is believed and intended, to be correctly stated in the second section of the said schedule hereto annexed, who, at any time before the first day of December next, in lieu and satisfaction of their claim, shall take and accept the notes of the said Kerrison & Leiding, bearing the same date, 1st December, 1866, payable at the same time (two and three years after date), with interest from the same (1st June, 1865), each note for one-half the principal due such creditors as the creditors named in the first section of the said schedule have taken and accepted; and thereupon the proper amount shall be set opposite the names of the said creditors named in the second section of the said schedule: and, in the next place, in trust, unless the said notes be paid by the parties hereto of the first part in the mean time, then at public or private sale to sell and dispose of all and singular the premises aforesaid, or so much thereof as may be necessary, or to raise the sum required by mortgage (if practicable), in due time, to provide for the payment of the said notes as they shall fall due, together with all proper charges, expenses, and commissions to be allowed to the said Charles Kerrison, which commissions shall not exceed five per cent upon the amount of sales or sums raised by mortgage. Or if he, the said Charles Kerrison, should deem it best for the interest of all, then to sell and dispose of the said premises, or any part of them, at any time after the execution and delivery of these presents, as he may think proper, for cash, or on such credit as may enable him to meet the said notes at maturity; and if he should so sell for cash, or for cash and credit, before the maturity of the said notes, then, after paying and retaining all proper charges, expenses, and commissions, to pay the clear residue of the cash so received by him to the parties or holders of the said notes in average and proportion to the several and respective amounts due upon the said notes, if the cash be not sufficient to pay the whole thereof, and in the same way to pay the proceeds of sale of the whole property (less charges, commissions, and expenses) pro rata, if the whole be not sufficient to pay the said notes in full at their maturity.'

A. T. Stewart & Co. were named as creditors in the second schedule; but they declined to accept under the trust. Paton & Co. were named in the first schedule, and Benkard & Hutton in the second.

On Aug. 8, 1866, and before the execution of the deed of trust, Stewart & Co. sued out a summons, entitled 'Sixth Circuit of the United States of America, South Carolina District,' and tested by the Chief Justice of the United States, at Greenville, South Carolina, commanding the marshal of the United States for that district to summon Edwin L. Kerrison and Herman Leiding to appear before the clerk of the Circuit Court of the United States for the aforesaid circuit and district, at the rules to be holden at Charleston, in the aforesaid district, on the first Monday in September next, to answer, &c. The writ was signed by the clerk of the Circuit Court for the district of South Carolina, and sealed. At the day named, Kerrison & Leiding, by their attorneys, entered their appearance to the suit, before the clerk. Stewart & Co. then filed their declaration, containing several counts; to a part of which Kerrison & Leiding demurred, and to others they pleaded specially. They also pleaded the general issue. Stewart & Co. demurred to the special pleas, and the cause was placed upon the docket of the Circuit Court. At a regular term of the Circuit Court, holden at Charleston in June and July, 1867, the demurrers to the declaration were overruled, and those to the special pleas sustained. The cause then standing for trial upon the general issue, was continued. In the following August, the docket of the Circuit Court was taken to Greenville, at which place, on the first Monday in that month, a regular term of the District Court for the Western District of South Carolina was held, that court having circuit-court jurisdiction and powers in that part of the district of South Carolina embraced within the western district. Before the term, the attorneys of Stewart & Co. notified the attorneys of Kerrison & Leiding that they should insist upon the trial of the cause at that term and place. Accordingly, the parties appeared, and upon the regular call of the docket a trial was had. The case was argued by counsel on both sides, without objection to the jurisdiction. A verdict having been rendered by the jury in favor of Stewart & Co., judgment was in due form entered thereon, Sept. 24, 1868. Execution was issued upon the judgment, and returned nulla bona; whereupon Stewart & Co. filed their bill in equity in the Court of Common Pleas for the county of Charleston, a State court of South Carolina, against Edwin L. Kerrison, Herman Leiding, Charles Kerrison, Paton & Co., and Hutton (the last two as representative creditors), praying that the deed of trust to Charles Kerrison might be adjudged void as to them, and that the property covered by it might be subjected to the payment of their judgment. The Kerrisons and Leiding appeared and defended the suit. Publication was made to bring in Paton & Co. and Hutton, who were non-residents of the State; but they did not appear, or make defence. The Court of Common Pleas, June 22, 1870, after hearing, adjudged the deed to be void as to Stewart & Co. From this decree the Kerrisons and Leiding appealed to the Supreme Court of the State, where it was affirmed, March 1, 1872.

Kerrison & Leiding were adjudged bankrupts upon their own petition, April 6, 1872, and afterwards Charles Kerrison was duly appointed and qualified as their assignee. This bill was filed by him, as such assignee, in the Circuit Court for the district of South Carolina, against Stewart & Co., and the creditors provided for in the trust deed, to adjust the liens upon the property, with a view to a sale and distribution of the proceeds under the direction of the court. Stewart & Co. answered, claiming a prior lien under the operation of their judgment and the decree of the State court in their favor; and they insist that the creditors are bound by that decree. The creditors answered, alleging that the judgment in favor of Stewart & Co. was void for want of jurisdiction in the court in which it was rendered; or, if not void, that it is invalid as to them, by reason of certain irregularities in the proceedings previous to and at the time of its rendition, and that, as they were not parties to the suit in the State court, they are not bound by the decree.

The Circuit Court sustained the prior lien of Stewart & Co., and decreed accordingly. From this decree the creditors and the assignee in bankruptcy appeal to this court.

Submitted on printed arguments by Mr. Edward McCrady, Jr., for the appellant, and by Mr. Samuel Lord, Jr., for the appellees.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.