Pritchett v. . Tolbert

Connor, J. At the trial of this action in the Superior Court, the plaintiff contended that the judgments on which the executions in the hands of the defendant were issued, having been rendered and docketed *646 in the office of the clerk of the Superior Court, within four months preceding the date of the voluntary deed of assignment for the benefit of creditors, which was executed by the judgment debtors to the plaintiff, were preferences, under C. S., 1611, and for that reason were void. This contention was sustained by the judge. In this there was error. C. S., 1611, is as follows: “It is the duty of the trustee to recover, for the benefit of the estate, property which was conveyed by the grantor or assignor in fraud of his creditors, or which was conveyed or transferred by the grantor or assignor for the purpose of giving a preference. A preference, under this section, shall be deemed to have been given when property has been transferred or conveyed within four months next preceding the registration of the deed of trust or deed of assignment in consideration of the payment of a preexisting debt, when the grantee or transferee of such property knows or has reasonable ground to believe that the grantor or assignor was insolvent at the time of making such conveyance or transfer.” There is nothing in this statute to sustain the contention of the plaintiff. Where a judgment for the recovery of money has been rendered by a court of competent jurisdiction, and the judgment has been duly docketed in the office of the clerk of the Superior Court of the county in which the judgment was rendered, the judgment is not a preference under the provisions of C. S., 1611, although within four months after the date of its rendition or docketing, the judgment debtor executes a voluntary deed of assignment for the benefit of his creditors, by which be conveys all his property, real or personal. The judgment in the instant case is reversed. The action is remanded to the Superior Court of Caldwell, where such further proceedings may be bad as either of the parties may desire. If, in the instant case, as alleged by him in his answer, the defendant levied upon the personal property described in the complaint, under the executions in his bands, prior to the registration of the deed of assignment under which the plaintiff claims title to said property, the judgments on which the executions were issued are liens upon said personal property, from the date of the levy, having priority over the plaintiff’s title to said property. In that case, the temporary restraining order should be dissolved. Reversed.