Lane v. Tanner

[136]

MELVIN, J.

This is an appeal from a judgment in favor of defendants. The plaintiff as trustee for Addie L. Allen, a bankrupt, seeks recovery for the alleged fraudulent conversion of property belonging to the firm of A. C. Williams & Co., in which Mrs. Allen was a partner. The complaint contains averments to the effect that on April 22, 1905, while Addie L. Allen’s petition in bankruptcy was pending before the federal court, the defendants unlawfully conspired to take certain personal property of A. C. Williams & Co. situated at the dairy of said firm, and by means of a sale thereof, to convert it to their own use and benefit by applying it to the satisfaction of a pretended debt of defendant Williams, and thereby to hinder, delay, cheat, and defraud said Allen, her individual creditors and the creditors of the firm of which she was a member, and to prevent her and these creditors from subjecting said property to their just claims.

The answer, after traversing the material allegations of the complaint, set up by way of defense a certain chattel mortgage given by Williams and Allen in November, 1904, to secure the payment of a note in favor of Tanner, signed by Williams and his wife; and it is averred that on the thirty-first day of March, 1905, Tanner, in accordance with the terms of said mortgage lawfully took possession of the property described therein; advertised it for sale according to law; and that a portion of it was sold at public auction on the twenty-second day of April, 1905, to satisfy the said note. Another defense is urged, based upon a judgment dated May 13, 1905, in an action for an accounting brought by Allen against Williams, by which the court found that, in an accounting including all matters up to May 1, 1905, Allen was indebted to Williams in the sum of $561.07. This judgment is pleaded by way of estoppel of plaintiff’s claim for any sum due from defendants, or any one of them, to plaintiff’s bankrupt. According to the averments of the complaint, Mrs. Allen’s petition in bankruptcy was filed on April 12, 1905; she was adjudged a bankrupt on December 5, 1905, and the appellant herein was subsequently selected as sole trustee of her estate. It will be seen that the date upon which Tanner received the property, according • to the allegations of the answer, was before the filing of Mrs. Allen’s petition in bankruptcy, but that the sale mentioned in both pleadings oe