Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-05-24
DEo1sroNs OF THE SUPREME COURT
OFFICIAL.

| OFFICIAL.
Decisions OF the Supreme Court OF the
state OF Tennessee at Nashville, De-
cember Term, 1860.
BarcrOf Beaver Co., and others vs. snodgrass others
The compIainants are portion of the joint cred
itors of the late mercantile firm of SnOdgrass &
Brothers.
Joseph Snodgrass, the senior member of said firm,
died IN July 1855 and Immediately after his death,
towit: On the 18th day of July, 1S5S the surviving
| members of the firm, Lafayette and James II. Snod-
grass, made an assignment by deed of trust to the
defendant, Debrell testator, of all the property
and effects of every description belonging to said
rE including real estate stock of goods. and debts
due to the concern.
The firm, at the death of Joseph Snodgrass, was
| largely indebted to complainants (who are mer-
chants of New York Philadelphia and Nashville, for
goods purchased in the fall of 1857; and likewise to
| a large number of persons at home, and was then
really insolvent to the extent of many thousands OF
| dollars
The assignment processes to be for the benefit of
all the creditors Of the firm, and all named in
| cluding the cOmplainants. But, by reason of the
preference given the domestic creditors it is prob
able that but little anything, viii be left for the
ccmplainants. Among the class Of preferred cred
itors there are large number, perhaps upwards OF
twenty, the respective amounts of whose debts are
not stated at all. There also large number OF
debts provided for in the preferred list which, pra
fdcie are individual debts Of the several partners
| and not debts of the firm.
| BY the terms of the deed the trustee is to take
possession OF the lands, tenements, town lots,
| goods, wares, drugs, jewelry, merchandise proper
| ty and effects hereby assigned and conveyed, and
sell the same upon such terms and conditions as IN
his judgment may appear best and most for the IN
terest of all parties concerned and convert the same
! into cash." DC.
] The deed further provides that if the trustee
"fais to make sale of all the property, both real
and personal Goithin eighteen months from this date
| that he shall proceed TO advertise" &c.
The trustee is required out Of the proceeds, first
to satisfy in full long list of preferred domestic
creditors, whose names occupy nearly two pages
| and among whom included the trustee himself,
and several family relatives OF the makers OF the
| deed The surplus is to be distributed prOlrdtd
among the complainants and creditors not included
] in the privileged class.
The attachment in the present was not issued
| until the 22d of November, 1858, mere than four
months after the date of the assignment
1t tappears from schedule exhibited by the trus>
tee with his answer that the entire assets of the
firm of every description, except the land, was es-
timated at upwards of $4,000. 1t likewise appears
from said schedule that after his acceptance Of the
trust and before the service of the attachment he
realized from the trust property and to certain OF
/ the preferred creditors, upwards of $4,000.
| The residue of the property seized upon the at
taehment was placed in the hands of receiver, by
order of the Chancellor, who appointed the trustee
| receiver.
| An apphcatiou was made Debrell, as trustee and
receiver for sale of the real estate which was de-
creed accordingly.
The bill impeaches the assignment for fraud. both
| in law and in fact and also upon other grounds.
| The Chancellor decreed the assignment void IN
law ON the ground that the surviving partners did
| not possess the power to make an assignment to
a trustee of the partnership effects, and more espe-
pecially an assignment giving preference to some
| of the partnership creditors over others.
| Itmay be observed. before noticing the material
| grounds relied upon to avoid the assignment that
the objection to the legal competency of the trustee
to execute the trust in the shape in which 1t Is pre-
sented to us is of no Importance. The objection Is
| this
The trustee at the time of his appointment as
SUCH was the Clerk of the County Court of White
He in FORM before entering upon the execution OF
the trust, gave a bond, and took an oath, as pre-
scribed by sec. 1874, of the Code, the bond being
taken by the deputy Clerk, and the oath administer
red by him also.
This was clearly not allowable. The Clerk him
SELF is the person designated by law, to take and
preserve the bond, and to administer the oath
These acts cannot, the existing state Of our law
| be performed by the principal Clerk before hi;
deputy; and consequently unless exonerated from
the obligation to give bond and take the oath, by
the benefciaries in the trust, Gas may be done, BY
the section above referred toy the Clerk is mo-
legally competent to act as trustee.
Admitting this to be so however, it in no way
affects the validity of the trust the interests Of
/
for the appointment of another, to act in all case;
where the trustee fails to qualify; and, of course
the case of trustee incompetent by law to act Is
embraced sec. 1871 But aside from this, IN equity
trust is never allowed to fail, or to De af1ectec
for want of trustee.
We proceed to notice the more important ground;
upon which the validity Of the deed Of trust Is as
sailed.
1. The charge of Intentional fraud IN making
the assignment, is very positively denied by the
defendants and is not sufficiently supported by the
proof
Its true there are matters apparent upon th'
face of the deed which furnish priRd dce evidence
perhaps of fraud in fact but these suspicious cir
cumstances. or badges of fraud, are sufficiently ex
planned in the answers and proof to repel the pre-
sumption of Intentional fraud.
9 1t is said that it was fraud, in law, at least
upon the complainants, to embrace in the assign
ment debts that were not due from the partnership
but from the individual members OF the firm.
If the fact were shown to be so the legal conclu
sion insisted upOn would not follow, as was decided
in LasseI We. Tucker. Sneed, l:
But the matter of fact, except in very few IN
stances is shown not to as assumed; and that, II
facts the debts, though apparently the lndiYldua
debts of the separate partners were in reality part
nership debts.
II is clear that wherever the original credit wa
given TO the partnership that will constitute deb
against the partnership, Notwithstanding the part
4 ner contracting the debt may have gwen his owl
therefor And on the other hand, the original cred
it was exclusively given to the partner contractn!
the debt the partnership will not be liable therefor
although it has been applied to the use and bench
of the firm. Story on Part sec 3oi. Uniess; !ndeeC
the debt thus contracted by the partner on his owl
account exclusively, has been Immediately assumed
by the partnership with the assent of the creditor
as partnership debt; it will, then, henceforth D.
treated in favor of the creditor as joint deOt d
if one partner is separately entrusted with trust
j nd vyith tba I'M 0dU
partners he applies it to the partnership purposes
1t will constitute Joint debt against the partner
ship, at the election of the beneficiary, 10. S6S
There is no doubt that, under certain circumstan
ces and upon a sufficient consideration, by agree
= ment of the partners, and with the consent Of tn
creditors the separate debts of one partner may b
converted into the JOINT debts of the partnership
and the Joint debts of the partnership, int
the separate debts Of one partner. 10 soy
37O 1t is generally true, however, tina
In order TO bind the firm, the partner eontractln
the debt must have had an original authority to
So and have exercised on the credit and account
the firm, and not on his own exclusive credit 0
else the transaction must have been subsequently "a
fled and adopted by the firm, as one for which the
were originally liable, for which they have elet
ted TO become Jointly liable, or to give their Joir
security. H. las, l46.
From these principles it will easily be seen, win
debts embraced in the assignment are partnershI
debts. and what remains the separate debts Of Il
individual partners.
Ga It is also insiated that the omission in the dee
TO state the respective amounts due to large nun
Der of the preferred creditors, If not sufficient
avoid the deed altogether, will at least avoid it p
tGnt0
1t is certainly proper, for various reasons, tn
o the debt intended to be secured should be descri
ed with sufficient certainty either in the deed, or
reference to aaschedule accompanying 1t /; and u
omission to do so if not satisfactorily explained ca
not fail to excite suspicion. But, it would see
from the authorities that if there be nothing else
impeach the fairness and bona fdes of the transa
ton. neither the validity of the deed nor the secul
ty designed for the creditor whose debt is omiit
: to be specified, will be affected tnereOy. -
heen held that where there was mistake In 3
az assignment in stating the debt at less than !
r. amount really due and intended to be received h