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Strickland, adm'r, vs. Dent.
that the said notes due to him shall be paid equally with other notes due from the estate, and he be allowed to hold the title to the said house and lots. There is a prayer in this bill that the Court would decree a sale of the house and lots, and that the proceeds be paid out to the creditors of the deceased, according to equity and justice, and the decree of the Court, as well as a prayer for general relief. It is competent for the Court, under the allegations and prayers of this bill, to decree a sale of the house and lots; that the purchaser shall pay the purchase money to the said Dent, to an amount sufficient, if the property should sell for so much, to pay the principal and interest of his debt, and that Dent shall thereupon execute a title to the purchaser; and that the complainant be decreed to deliver up, thereupon, to Dent, his bond to make titles; and further, that if the house and lots should not sell for enough to pay the said notes, that Dent shall receive the money for which they were sold, and execute a title to the purchaser, and come in pari passu with other creditors having demands of the same dignity, for whatever balance may remain due on the said notes, after crediting the proceeds of the sale of the house and lots. The defendant, Dent, has no right to carry his debts into judgment and come in and claim against the other creditors, a ratable proportion of the assets, according to the face of his notes. The proceeds of the sale of the land he is entitled to, upon his notes, to an amount sufficient to pay them, to the exclusion of other creditors; but he has no right, and a Court of Equity will not allow him, to come in with his notes for the entire amount of one thousand dollars against the general assets, and then claim the house and lots, on an application to recover it on the ground that he has not been paid. The ertate is alleged to be insolvent. But for that, he might recover the whole amount of his notes from the general assets, and then execute a deed, under the statute, to the heirs-atlaw of the intestate, in discharge of his bond.
The judgment of the Court below must be reversed. There
Pledger and Pledger vs. McCauley.
can be but little difficulty in administering the estate, after the sale made, and the appropriation of the money according to the principles herein stated.
ALLEN PLEDGER and THOMAS PLEDGER, plaintiffs in error, vs. JAMES MCCAULEY, defendant in error.
Motion to dissolve an injunction on the coming in of the answer, ought to be refused, unless all the equity set up in the bill is denied by the answer.
In Equity, injunction from Catoosa county. Decided by Judge TRIPPE, October Term, 1857.
The facts of this case are sufficiently stated in the opinion of the Court.
AKIN, for plaintiff in error.
HOOPER; and WALKER, contra.
By the Court.-MCDONALD, J. delivering the opinion.
The error assigned in this case is on the refusal of the Court to dissolve the injunction on the coming in of the answers. The defendant, Thomas Pledger, had taken the assignment of twenty-five fi. fas. issued from a Justices' Court in favor of Hickman, Westcott & Co., against the complainant and Allen Pledger, the other defendant. He had ordered some of them to be levied on the property of the complainant, and others he had directed to be returned, and ca. sas. to be issued in their stead, and had ordered the complainant to be arrested thereon. The complainant then filed
Pledger and Pledger vs. McCauley.
this bill, enjoining the said executions against the property and the body of the complainant from proceeding, charging them to have been paid off with the money of the defendant, Allen Pledger, and fraudulently assigned to Thomas, for the purpose of harrassing the complainant. Among other things, the bill alleges a partnership to have existed between complainant and the defendant, Allen Pledger, in a mercantile concern, and in certain land and mills; that he sold to the said Allen his interest in both, for a consideration stated in the bill, and in this contract of sale the defendant, Pledger, undertook and agreed to pay off all partnership debts; that the debt on which the said assigned fi. fas. were issued, was a debt of the partnership, which the said Allen Pledger was bound to pay; that the said fi. fas. were paid by Allen Pledger, or by his father, Thomas Pledger, with Allen Pledger's money; and so far as the Pledgers were concerned, they were transferred fraudulently, to harrass complainant.
The bill alleges, further, the sale by Allen Pledger of half of the land and mills to his father, Thomas Pledger, for which he took his note; that the defendant, Thomas Pledger, knew at the time of the purchase by him, of the contract by which the said Allen was to pay all the debts of the partnership. There are many allegations of facts and circumstances in the bill, on which charges of fraud are made, which it is unnecessary to set forth here.
The answers of the defendants deny that the partnership extended to the land and mills; that the defendant, Allen Pledger, was to pay the debts of the mercantile concern, to which alone the partnership extended, except from the assets transferred; and states that the individual liability of complainant remained equally with that of defendant, Allen Pledger, for any balance unpaid by partnership effects; denies that he was to pay the debts or anything to complainant, except conditionally, and refers to the note given by him to complainant, on which defendant was sued but never served, and in which suit he alleges a fraudulent confession
Pledger and Pledgor vs. McCauley,
of judgment by an unemployed attorney. The defendants deny that for the assigned writs of fi. fa. the money paid was Allen Pledger's money, but insist that it was the money of Thomas Pledger. They deny that the assets of the firm were sufficient to pay the debts; state the amount that was received about $500; but they set forth no schedule of assets, nor any account thereof.
They deny that the note given by Thomas Pledger to Allen Pledger, for an interest in the land and mills, was not applied to the payment of the debts of the firm; but on the contrary, Allen Pledger says it was transferred to certain creditors of the firm in Augusta, Hand, Williams & Co., as collateral security for the payment of a debt due them, and that he never received one cent from it. Thomas Pledger, in his amended answer, says that he paid the said note to Hand, Williams & Co., two years and six months before it became due, at a discount of twelve per cent.
The answers disclose the fact, that complainant filed a bill in equity against Thomas Pledger and the Sheriff, when a sum of money, raised upon the sale of Allen Pledger's property, on the first Tuesday in December, 1852, was in the hands of the Sheriff, and Thomas Pledger interposed the said transferred fi. fas to claim it, in which bill the complainant charged that the said writs of fi. fas, in favor of Hickman, Westcott & Co., (which were the said transferred fi. fas,) had been paid off, and were kept open fraudulently, for the purpose of defrauding complainant; and it was prayed that the said money should be paid to the satisfaction of debts against McCauley & Pledger, and to the complainant, for money advanced by him on the sale of his property, to-wit: fifty acres of land he had purchased with money of the partnership. Before the bill reached a hearing, it was agreed between the parties that the bill should be dismissed; that Thomas Pledger should withdraw the fi. fas. transferred to him, and give further time, and that the money in Court should be applied as follows:
Pledger and Pledger vs. McCauley.
1st. To the payment of an execution in favor of G. W. Terry vs. McCauley & Pledger.
2d. To execution of W. W. Waring & Co. vs. McCauley & Pledger.
3d. To the payment in full of two of the twenty-seven fi. fas. of Hickman, Westcott & Co. vs. McCauley & Pledger, still in the hands of the original plaintiff.
4th. To the payment in full of a fi.fa. in favor of Clayton & Brigman vs. McCauley & Pledger, and the remainder, being $282 98-100, to the complainant, James McCauley, alleged by him to have been paid by him for McCauley & Pledger.
I believe I have now referred to all the parts of the bill and answers necessary to present the views of the Court. The conditional note referred to in the answers, as set forth in one of the exhibits to Allen Pledger's answer, is in the following words:
"Four months after date I promise to pay to James McCauley, two hundred and eighty-two 98-100 dollars, provided this amount falls due him on a settlement of the firm of McCauley and Pledger, more or less. 16th March, 1852. ALLEN PLEDGER."
The presiding Judge in the Court below held, upon a full consideration of the bill and answers thereto, that the injunction ought not to be dissolved. There were as many, certainly, as three issues involved in the bill and answers, to be considered by the Court in making up the judgment. First, whether the partnership extended to the land and mills; second, whether the contract, at the dissolution of the partnership, bound Allen Pledger to pay the debts of the partnership irrespective of the assets; and third, whether there was fraud in the assignment of the judgments or fi. fas. by Hickman, Westcott & Co. to Thomas Pledger.
In respect to the first issue, the answer of one of the de