Bonnette v. Clow , 118 S.C. 376 ( 1922 )

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

The following statement appears in the record:

“This action was commenced on or about June 5, 1920, and was based upon a certain promissory note given by defendant to plaintiff, and also upon a contract between plaintiff and defendant, which note and contract are set out verbatim in the complaint. At the time of the commencement of the action, the plaintiff procured a warrant of attachment, under which he sought to attach a certain bond and mortgage, the property of the defendant, the said warrant of attachment having been issued upon an affidavit signed by the plaintiff, in which it was set out that defendant was preparing to leave the State attachment, attached to which notice' was a certificate of his property with intent to defraud his creditors.

“The defendant served notice of motion to dissolve the attachment, attached to which notice was a certificate of J. F. Walker, clerk of Court, to the effect that he has possession of the mortgage sought to be- attached. Said motion was heard before Hon. W. H. Townsend, Judge of the Fifth circuit, on June 18, 1920, and on that date he passed an order dissolving the attachment. Thereupon the plaintiff filed another affidavit, setting forth therein substantially the same allegations as in the former one, and procured a second Warrant of attachment for the bond and mortgage in question. Upon effort being made to attach same, it developed that the defendant had parted with title and possession thereof. The second attachment was served June 21, 1920. Thereupon, under date of June 24, 1920, the plaintiff made another affidavit, which is set out in the record herein, on the strength of which he procured from Hon. W. H. Townsend, Judge of the Fifth circuit, an order for the arrest of the defendant, under provisions of Section 230 of the Code of Civil Procedure. Defendant furnished bail in the sum of $500 as provided by said order.

“The case was heard at the June, 1921, term of the Court of Common Pleas for Richland County, and the presiding Judge directed a verdict for the amount of the note sued upon, plus interest and attorney’s fees. From this part of the judgment directing a verdict for the amount of the note plus interest and attorney’s fees no appeal is taken. The presiding Judge submitted to the jury the issue as to whether or not defendant had disposed of the property in question, with intent to defraud the plaintiff. The jury found that he had, and judgment was entered holding the defendant in arrest and bail. From the rulings and charge - of the presiding Judge upon this issue the present appeal is taken.”

The defendant’s exceptions are as follows:

“(1) That his Honor erred in refusing defendant’s motion for a direction of a verdict, there being no testimony showing or tending to show that defendant had disposed of his property with intent to defraud his'creditors.

“(2) That his Honor erred in charging the jury: ‘N’ow, if a conveyance of property is made by. a debtor with intent to defraud ' his creditors, or to delay some of his creditors, prevent them from collecting their debts, it would be fraudulent so far as. the debtor was concerned, although the debtor by so disposing of his property satisfied or paid a just debt outstanding against him. In other words, if the defendant, Clow, transferred his property to .the Bank of Columbia, with the intent of defrauding the plaintiff, Bonnette, and of preventing Bonnette from collecting his debt against the defendant, then Clow, under such circumstances, would be guilty of disposing of his property with intent to defraud his creditors, although in the same transaction he might pay a just debt he was due the Bank of Columbia’—because such charge is contrary to the statute law of South Carolina pertaining to the disposition of property with intent to defraud creditors, which refers to creditors as a class, and not to any individual creditor, and because,- where property was transferred to pay an honest obligation, it could constitute nothing more than a. preference of such creditor over others, if the debt was due and owing, and under such circumstances would not be an attempt to defraud creditors, as contemplated by the Statute.”

1 The first exception cannot be' sustained, as there was testimony tending to show that the defendant disposed of his property, with the intention of defrauding his creditors, which it is unnecessary to reproduce. Section 6 of Rule 5 (90 S. E., vii) provides that each exception must contain a concise statement of one proposition of law. But, waiving such objection, the second exception cannot be sustained.

2. The first proposition upon which the defendant relies is that the statute law, to which reference is made, refers to creditors as a class, and not to any individual creditor. No authorities are cited to §ustain this proposition, and it is not sound in principle.

3 The second proposition upon which he relies is that, where property is transferred to pay a valid obligation, the assignor will not be guilty of fraud, even if it was also his intention, in transferring his property, to defraud other creditors. It is not necessary to cite authorities to show that this proposition is untenable.

Appeal dismissed.

Messrs. Justices Watts and Fraser concur.