Chattanooga Stove Co. v. Adams

Simmons, Justice. Only two questions were made in this case in the [324] court below, which were decided against the plaintiff-in error there and are brought here for review: (1). whether the assignment set out in this record was valid or invalid; and (2) whether, if it was invalid, Adams,the assignee, was liable as executor de son tort. The court below held that the assignment was valid; and that if it was not, Adams was not liable as executor de son tort, and nonsuited the plaintiff. While we are inclined to think that this assignment was void, according to the decisions of this court in Turnipseed et al. vs. Schaefer et al., 76 Ga. 109; McMillan, trustee, vs. Knapp et al., Id. 171; and Fort vs. Martin Tobacco Co., 77 Id. 111, still we think the judgment of the court below granting this nonsuit was right, on the second ground. It appears from this record that Laney made to Adams a deed of assignment of all his property, consisting of dry goods, etc., for the benefit of his creditors, on the 26th of October, 1886 ; and Adams went immediately into possession of the same and commenced to dispose of them. On the 12th of Novembei’, 1886, Laney died, and Adams continued to sell and dispose of the property after his death. In the early part of 1886, he sold the balance of his stock remaining on hand at public outcry, and applied most of the proceeds in payment of the preferred debts specified in the deed of assignment. No attack was made on this •assignment for fraud of qny sort. So far as this record discloses, Adams acted in good faith in accepting the trust and disposing of the property and applying the proceeds to the debts mentioned in the assignment. The deed of assignment was made to him by Laney before his death, and Laney put Adams in possession of the property before his death. It is not a case where a person intermeddles after the death of the owner of the goods, but where the owner himself, under [325] a deed which, both thought was sufficient, put Adams in possession before his death. We do not think, under this state of facts, that Adams was liable as executor de son tort, although the deed under which he acted may have been void on account of a defect in the affidavit. Stewart vs. McMinn, 5 Watts & Sergeant, 100; Therasson vs. Hickok, 37 Vermont, 454. Judgment affirmed.