Powell v. Aiken & Gwinn

Simon, J. delivered the opinion of the court. On the 8th of April, 1840, plaintiff sued out an attachment against the defendants, which was first levied, among other property, on a negro slave named Edmund; on the 13th of the same month, Lambeth & Thompson intervened, alleging that at the time the attachment issued, said slave was their property, by virtue of a transfer made to them and one James Gwinn on the 1st of May, 1838; thgt said slave was delivered to their co-transfer-ree in Mississippi, and was by him brought to Louisiana in order to sell the same to pay the debt specified in the transfer, which debt is still due and unpaid. The deed of transfer is annexed to their petition; and they pray that the sheriff be ordered to retain in his hands the slave or its proceeds, and that the same be restored to the intervenors. On the 20th of May, the plaintiff filed a supplemental petition, made Lambeth & Thompson garnishees, and propounded to them certain interrogatories, to which the garnishees answered by stating: 1st. That they had not in their possession any property, rights, credits or effects belonging to the defendants or in which they were in any manner interested; except thirteen bales of cotton which were sent to them by the defendants in the usual course of business, to pay advances by them made to said defendants. 2d. That fifty-eight bales of cotton, no [325] mark, had previously been attached in their hands by the defendants as the property of G. W. Reynolds, the net proceeds of which, amounting to $1049, remained in their possession according to a previous agreement; that on the 7th of April, 1840, one of the defendants, in behalf of both, transferred to them the amount of said proceeds in consideration of moneys to a far larger amount previously advanced by them to the defendants, and gave them an order on Peyton & Smith, their attorneys in said suit accordingly. And 3d. That they had no written communication from the defendants, except the one above mentioned, and had none from Reynolds, &c. The order on Peyton & Smith, is written at the foot 'of the notice of attachment against Reynolds, and is in the following words: “ Messrs. Peyton & Smith will please pay over to to W. M. Lambeth & Thompson the proceeds of fifty-eight bales of cotton which was consigned to them per the steamboat Bayou Sara, ‘ no markwhich was attached by us as the property of George W. Reynolds, on the 27th February last, and their receipt will be good for the same. — New Orleans, April 7th, 1840. (Signed) AIKEN & GWINN.” On the 28th of May, another supplemental petition was filed by the plaintiff who propounded new interrogatories to the garnishees to ascertain the consideration which they gave for the claim against Reynolds; which interrogatories were subsequently answered by their giving a statement of the circumstances under which the claim was transferred, and showing that it was in consideration and in part payment of a large debt which the defendants owed them since the year 1838. On the 29th of October, 1840, the intervenors filed a supplemental opposition, in relation to the slave Edmund, in which they state that said slave never was the property of the defendants, but belonged to John R. Aiken, and was by him assigned and transferred to pay the debt detailed in the assignment ; whereby the proceeds of the slave are still liable to them to be applied in part payment of said debt in preference to plaintiff’s, and they pray accordingly. On the 7th of De [326] cember, plaintiff answered the petition of intervention, by pjea¿jng. generai issue and alleging that the instrument by virtue of which the intervenors claim the slave attached, is fraudulent and void, and never was recorded so as to operate to the prejudice of the attachment. On the 17th of the same month, a rule was taken on the garnishees to show cause why judgment should not be rendered against them for the amount of the judgment obtained against the defendants; which rule on the 22d of Decerñber, was answered by the garnishees averring that the thirteen bales of cotton and the proceeds of the fifty-eight bales, were transferred and delivered to them because the defendants were indebted to Lambeth & Thompson in a large sum of money varying at different times from $8000 to $20,000 since 1838, for advances in money, acceptances, &c., by them made to said defendants, and that the same were thus transferred as set forth in their answers to the interrogatories already filed. On all these issues, the court below first rendered a judgment in favor of the intervenors, sustaining their intervention and ordering the proceeds of the slave Edmund to be paid to them in part satisfaction of their claim against Martin & Aiken; and afterwards rendered another judgment discharging the rule taken by plaintiff on the garnishees. From these judgments, the plaintiff appealed. This case presents three very distinct matters in controversy between the parties now before us: 1st. The claim set up by the intervenors to the proceeds of the slave Edmund, by virtue of the transfer made to them by J. R. Aiken, as creditors of the late firm of Martin & Aiken. 2d. The right contended for by the garnishees to apply the thirteen bales of cotton found in their possession or their proceeds, to the payment'of the advances by them furnished to the defendants previous to the attachment. 3d. Their right to keep the proceeds of the fifty-eight bales of cotton attached in their hands at the suit of defendants [327] against Reynolds, and transferred to them to be applied to the satisfaction of the debt due them by said defendants. Where garnishees are in possession of a slave transferred to them in Mississippi, by the surviving partner, in payment of a debt due by the firm, they will hold it against an attaching creditor of a new firm, of which this partner is a member. The solution of these questions will depend mainly on the application of the general rule so often sanctioned and recognized in our jurisprudence, that when the owner of property has lost all power over it, and cannot change its destination, his creditors cannot attach; 9 Martin, 316; 4 Martin, N. S., 657; 7 Idem, 137; 2 Ra. Rep., 514; 13 Idem, 570; 15 Idem, 465. And so, if the defendants themselves could not have taken the property in dispute out of the hands of the garnishees, it is clear the plaintiff cannot. I. The alleged right of the intervenors to the slave Edmund or its proceeds is predicated upon a deed of transfer or assignment, executed in their favor by John R. Aiken, in the state of Mississippi, on the 1st of May, 1838, as surviving partner of the late firm of Martin & Aiken, and for the,purpose of securing the payment of a debt of $15,000 to $20,000, due by the said firm to the intervenors; in consequence of which, the said Aiken, as survivor of the firm, transferred, assigned and delivered to the intervenors and James Gwinn, certain property and slaves, (the slave Edmund among others,) to have and to hold the same absolutely and forever until the debts therein specified are discharged. The parol evidence, which comes up unobjected to, shows that the-deed was executed on the day of its date; that the debt, to secure which the transfer was made, was then justly due by Martin & Aiken to the intervenors; that the slave Edmund belonged to Aiken as survivor of the firm; that he never belonged to the defendants, and that said slave was brought down to New Orleans where he was attached. From this testimony, it appears to us clear that, although the intervenors have not established a direct legal title to the slave attached, yet the same is not and has never been the property of the firm of Aiken & Gwinn, and cannot be attached by their creditors. The intervenors are creditors in a large amount of the firm of Martin & Aiken, to which the slave belongs, and if so, there is no necessity of enquiring into [328] the nature of the right which they may have acquired under ^h.e transfer from Aiken, as the proceeds thereof must be exclusively applied to the discharge of the debts due by the said partnership, in preference to those of the new firm of Aiken & Gwinn; La. Code, art. 2794; 10 La. Rep., 348; 12 Idem, 374; 13 Idem, 281. Evidence duced andaré-eeived without opposition or objection, altho’ heyond5tlie°aile-ed^n the "pleadings, the adverse party is hound by its effect. Where cotton is shipped to are entitled To a íégeí softhat the consignor or owner could not take it out .of their hands, his creditor cannot ‘Hands? m íAeír It is contended, however, that the probata does not agree with the allegata, and that the interveners having alleged in their petitions that the slave was the individual property of John R. Aiken, their allegations must be taken as the highest proof of the fact that it did not belong to the firm of Martin & Aiken. Those allegations ought, in our opinion, to be taken in connection with the act of transfer annexed to the petitions and therein referred to ; and there it is positively stated that the property therein described, belongs to the firm of Martin & -^-iben, an(l is transferred by Aiken as the surviving partner of the sa¡¿ frm . moreover, the evidencie whioh establishes this .... . fact was introduced and received without any objection, and it is a well settled rule that a party, who, without' opposition suf-^ers evidence to be adduced contrary to or beyond the allega-tjons contained in the pleadings, is bound by its effect; 11 Martin, 26; 6 Martin, N.S., 86; 1 La. Rep., 301. II. The answers of the garnishees to the interrogatories propounded to them by the plaintiff, establish satisfactorily that the thirteen bales Of cotton were sent to them by the defendants in the usual course of business, to pay advances which they had made previously to the defendants ; this evidence, far from being contradicted, is corroborated by the testimony of a witness who states that the thirteen bales were received under the arrangement that the garnishees should accept the defendants’ drafts at short sight and elate, which were to be met by cotton to be shipped to them, &c. And on this point, we cannot hesi-j.ate conclude that, as the defendants had no further control over this cotton, which they could hot take out of the! hands of . _ , the consignees; and as said consignees were entitled to tneir right of privilege on the same, the plaintiff cohld not attach it; La. Code, art. 3214; 14 La. Rep., 477. defendantegave ^11. order 0,1 their attorneys, to pay over the tain0ee<ÍS cotton, atteched^To toe jntervenors, to be credited, in their (defend^nts^ account it isJ good a-attaching °f de" • III. This last point does not seem to ns to present any serious difficulty: the right of the garnishees to the proceeds of the fifty-eight bales of cotton, is clearly established by their answers to the interrogatories ; it is shown that this cotton, which was in the possession of the garnishees, had been attached at the suit of the defendants against Reynolds; that as soon as, ■judgment was obtained, said defendants gave an order that the amount of the recovery should be paid over to Lambeth & Thompson, and credited on their account as so much paid on the large debt which the defendants owed them. No attempt was made to contradict their said answers; they are explicit and satisfac- * A tory, and although the order is dated one day previous to the issuing of the first attachment in this suit, yet Lambeth & Thompson were not made garnishees with regard to the proceeds of this cotton, before the 20th of May, 1840; and it was not until said garnishees answered the interrogatories propounded to them at that time, by the plaintiff, that said proceeds became a subject of controversy between the parties. We are not prepared to say that it was not a fair transaction, and that its object was to defeat the plaintiff’s proceedings. It is perfectly clear that the defendants were bound by the order which they had given; that it was not in their power to change the destination of the money recovered against Reynolds; that it was not necessary to notify Reynolds of the transfer of-a claim oyer which he had no further control under the judgment obtained against him; and that the right of Lambeth & Thompson thus yested previous to the levying of the attachment, could not be destroyed or in any manner affected by the plain-. tiff’s subsequent proceedings. It does not appear to us that the judge d quo erred in any part of the judgment appealed from. It is therefore ordered, adjudged and decreed that the judg-ment of the Commercial Court be affirmed-with costs.