Albany & Renssellaer Iron & Steel Co. v. Southern Agricultural Works , 76 Ga. 135 ( 1886 )

Hall, Justice.

1. The most material questions, as respect the legal sufficiency of the assignment in this record, aro identical with those made in Turnipseed et al. vs. Schaefer et al., and to that extent are controlled by the decision therein rendered. Here, as there, valuable assets, belonging to this alleged insolvent corporation, were left out of the schedule required to be annexed under the act of 1881 to the deed or instrument of assignment at the time it was executed, and here, as there, this deed contained a general clause, conveying to the assignee all property of the assignor, which for any cause was omitted from the schedule.

2. Notwithstanding, there are many cases to that effect, we cannot agree with counsel for the complainants, who argued the case with such learning and signal ability, that an insolvent corporation is incapable of making a general assignment for the benefit of creditors, either with or without provisions giving preferences and priority of payment to certain named creditors. The cases relied on go upon general principles of the mercantile and commercial law, and in the absence of statutory provisions like those contained in the act of 1881, under which this assignment is claimed to have been made, may possibly be correct, although there are others to the contrary, and especially the case of McCallie & Jones vs. Walton et al., assignees, 37 Ga., 613, in which Harris, J., broadly says, “ In Georgia no statute prevents an assignment by an existing corporation.” The above cited act of our legislature in express terms gives the right by name to such corporations, and provides by whom and in what manner the schedules annexed to the assignment are to be sworn to. The briefs of counsel for both sides will furnish the authorities upon the point.

3. Another question made and argued with much ability and force by the learned and indefatigable counsel for th¿ repondents is, that the complainants, who are creditors without any lien, have no right to invoke the remedial aid of a court of equity until their claims are reduced to judgment ; .and tha’t such was generally the rule at the time this conveyance was executed is undeniably true; but that special circumstances may exist rendering the rule inapplicable is equally true, and wo find that some of those circumstances do exist in this case: such, for instance, as tho insolvency of the debtor, who, it is alleged, has fraudulently transferred his property to one who is in complicity with him in the fraud, and who is rapidly disposing of the property, or where the property is obtained by fraudulent representations with which the assignee is connected. Cohen vs. Meyers, Cohen &c Co. et al., 42 Ga., 46; Cohen & Co. et al. vs. Morris &c Co. et al., 70 Ga., 313. And when to these circumstances is added the further fact that large supplies of goods were obtained with a view of making the very assignment in question, to enable the assignee to carry on the business of the party making the assignment for an indefinite period of time, and that these goods are embraced not only in the deed of assignment, but likewise in mortgages cotemporaneously executed to certain! of the-creditors preferred by the conveyance, including the assignee himself, to aid, as charged, any defects existing therein which might .render it void, and thus prevent the accomplishment of the scheme entered into by the parties, we think a strong case is made for the interposition of equity by an injunction and the appointment of a receiver, whether the complainants' had reduced their demands to judgment or not. The fact of provision being made to carry on the business, by the aid of goods procured for that purpose, and which have not been paid for, raises a presumption, though, perhaps, not a conclusive one, of an intention on the part of the parties to the transaction to delay, hinder and defraud such creditors as are not favoréd and preferred by the deed. This looks like an arrangement to coerce them to a disadvantageous settlement and compel them to submit to such terms as their debtors may see proper to dictate. In support of these positions, see authorities cited in brief of counsel.

But of what avail would it be to declare the assignment void, as we have done, for its want of conformity to law, if the parties holding these mortgages weré allowed to proceed to foreclose them at law, although it might turn out, upon a full hearing of the case, that they were made in aid of this void assignment and with a view to hinder and delay the creditors of the assignor and mortgagors '? The complainants are not parties to thése mortgages, and would have no right to intervene to prevent their foreclosure and enforcement at law. Code, §3965, and citations. So they would, in that event, be without any remedy to redress their wrongs and enforce their rights unless a court of equity should open its doors and invite them to enter. The- issues, formed by the facts, as they are presented at this preliminary hearing, must be submitted for determination by the court qu the final trial; and as the assignment has been declared void, and the property in dispute is to be preserved until it can be finally disposed of by a full decree, settling the rights and priorities of the parties as they existed at the time of exhibiting this bill, an injunction must issue and a receiver be appointed as prayed, or upon such other conditions as may appear to be equitable and proper under the law.

Judgment reversed.