Fleming v. Ogden

Opinion by

Mr. Chief Justice Paxson,

This was a bill filed in the court below by Sarah Fleming, the plaintiff, to restrain John Ogden, assignee of the firm of Cochran, Fleming & Co., from selling the real estate of the plaintiff, conveyed by her to the said assignee. The case is peculiar. The firm of Fleming Bros., composed of Cochran Fleming, plaintiff’s husband, J. Kidd Fleming, and Cochran Fleming, Jr., became insolvent and unable to pay its debts. A deed of voluntary assignment was executed by the members of the firm as a firm, and by the individual members thereof. The wife of Cochran Fleming, the plaintiff in this bill, joined in that deed of voluntary assignment by which her separate estate was conveyed to the assignee for the benefit of the creditors oi the firm. The master finds that she first knew the insolvency of the firm on the 3d day of October, 1890, at the time the deed was presented to her for signature and acknowledgment, and that she was pressed and urged by her husband to sign it upon the representation that by doing so she would save to him and her said sons the business in which they were engaged under the name of Fleming Brothers; that she begged that some portion of her property should be omitted; her husband refused that any portion should be excluded, and that being greatly worried and distressed by the misfortunes of her husband and sons, and overcome by the demands of her husband, without advice or time or opportunity to obtain advice as to her legal rights, signed and acknowledged said instrument; that no consideration was paid by any creditor of Fleming Brothers to the plaintiff or her husband, or to any member of the firm of Fleming Brothers, or by said Ogden, the assignee, for or by reason offher joining in this assignment.

It further appears from the report of the learned master that she signed the deed, relying upon the representation of her husband that the debts of his firm amounted to only two hundred and fifty thousand dollars, whereas is fact they exceeded six hundred thousand.

The representation and inducement, that by signing the deed she would thereby save the business of the firm, and prevent the insolvency of her husband and sons, was untrue in point of fact, and undoubtedly misled her.

Under such circumstances, we think the learned master and the court below were right in their conclusion, that the assignee should be perpetually enjoined from selling the plaintiff’s real estate, and that her conveyance of it by the deed of assignment should be declared void and of no effect.

The creditors of Fleming Brothers had no right to her property, or to have it applied to the payment of the debts of the firm. They did not give the firm credit iipon the strength of her ownership of this real estate. They gave her no consideration for the assignment, and she was undoubtedly deceived and misled by her husband, unintentionally perhaps, as to the condition of the firm at the time of the assignment. We can understand how a wife would be willing to part with her property to save her husband and sons from ruin, and to preserve a business for their support, but no woman of any sense would voluntarily throw her estate into such a yawning gulf of insolvency as this ease discloses; that she did not do it voluntarily is clear upon the evidence and findings of the master, and we see no reason in law or morals, why her property should be applied under such circumstances to the payment of the debts of the firm.

We need not discuss the specifications of error in detail. The decree of the court was right.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.