O'Connell v. Ackerman

Robinson, J., delivered the opinion of the Court. On the 14th of September, 1882, an attachment was issued at the instance of the appellant, against the goods and property of George H. H. Condon. On the same day Condon conveyed all his property to George E. Nelson ³⁴⁰ and John H. Y. Ackerman, for the benefit of creditors. After the payment of releasing creditors, the surplus if any, the grantor ' reserved to himself.

The deed was therefore as to creditors void on its face. The sheriff in his return says the attachment “ was laid in the hands of John H. Y. Ackerman on the 16th day of September, 1882,” and “was also laid in the hands of George E. Nelson on the 19th day of September, 1882.” On the return of the attachment the garnishees appeared and pleaded separately, non assumpsit on behalf of the defendant, and nulla bona on their own behalf. Separate suits were docketed against them, and the cases were thus tried before the Court, without the intervention of a jury. This appeal is from the rulings of the Court in the case against Ackerman.

The proof shows there was no money or property of any kind in his hands liable to garnishment except the sum of one thousand dollars, being the proceeds of sale of property conveyed by the deed to Nelson and himself for the benefit of Condon’s creditors. This being so, the liability of the appellee was a joint, and not a several liability, and as against him, the plaintiff in the attachment was not entitled to a separate judgment. The deed of trust was void it is true as against creditors, but it was binding on the grantor; and the grantees were not therefore separately liable as tort feasors. The money derived from the sales of the property conveyed by the deed, being in their joint possession as trustees,