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WILLIAM R. HANSON, JOSEPH L. MOSS, ISAAC PHILLIPS, JOSEPH M. MOSS, AND DAVID SAMUEL, PLAINTIFFS IN ERROR, v. LESSEE OF JOHN H. EUSTACE.

January 1, 1844

WILLIAM R. HANSON, JOSEPH L. MOSS, ISAAC PHILLIPS, JOSEPH M. MOSS, AND DAVID SAMUEL, PLAINTIFFS IN ERROR,
v.
LESSEE OF JOHN H. EUSTACE.



THIS case was brought up by writ of error from the Circuit Court of the United States, holden in and for the eastern district of Pennsylvania. It was an ejectment brought by Eustace, a citizen of the state Virginia, against the plaintiffs in error for two pieces of property in the city of Philadelphia; particularly described in the declaration. One of them fronted sixty-six feet upon Chestnut street, being upon the west side of Schuylkill Seventh street, and the other was on the westerly side of South Sixth street, between High and Chestnut streets, fronting twenty-five feet on Sixth street, nearly the whole of the lot being covered with a large building. The plaintiff below, Eustace, claimed title under a sheriff's sale; the defendant, Hanson, also claimed title under a public sale, but made under the authority of the assignees of R. and I. Phillips, who had become insolvent. Eustace alleged that the whole of the proceedings, both before and after the insolvency, were void on account of fraud; and that this being so, there was nothing to impair his own title. The firm of R. and I. Phillips, which carried on a very extensive commercial business, in Philadelphia, was composed originally of Robert Phillips and Isaac Phillips. After the death of the former, which occurred, as will be hereafter stated, the partners were Isaac Phillips and Joseph L. Moss, who continued to use the same partnership name.

In April, 1830, Isaac Phillips was regularly naturalized as a citizen of the United States.

On the 9th of June, 1832, Herring and wife conveyed to Robert Phillips, in fee, the property in Sixth street.

In December, 1833, Robert Phillips died, intestate; Isaac being then in Europe. John Moss, whose daughter Isaac had married, entered a caveat at the office of the probate of wills, to prohibit any one from taking out letters of administration upon his estate.

On the 29th of August, 1834, three several persons conveyed each a lot upon Mulberry street, or Arch street, being called by either name (the three lots being adjoining to each other, and making in the whole sixty-six feet), to Sarah Moss Phillips, wife of Isaac Phillips, subject to the payment of a ground rent therein mentioned.

In September, 1834, Isaac Phillips entered into a contract with one Linck, a house carpenter, to build a house for him on the lot just mentioned in Arch street, and agreed to pay said Linck $20,000 for it, in the manner stated in the contract.

On the 1st of January, 1835, R. and I. Phillips leased the property in Sixth street to one Saint for four years; R. and I. Phillips agreeing to assist in furnishing to the amount of $1,000, which was to be refunded by Saint in the first year, after which Saint was to pay $1,600 per annum as rent.

On the 9th of June, 1835, Thompson and wife conveyed to Isaac Phillips, his heirs and assigns, the Chestnut street, property, subject to the payment of an annual ground-rent of $272 per annum; and subject also to the payment of a mortgage debt of $3,500.

On the 22d of June, 1835, Phillips, having purchased the ground-rent thus reserved upon his lot, received a deed for it from the then owner, paying $4,533.33.

On the 30th of January, 1837, the register issued a notice to John Moss, stating that, in consequence of his caveat, no letters of administration had been taken out upon the estate of Robert Phillips, whereby the collateral inheritance tax was unattended to, and the commonwealth was suffering.

On the 4th of February, 1837, letters of administration were granted to Isaac Phillips, who gave the required bond and security.

On the 13th of February, 1837, R. and I. Phillips wrote to Eustace, instructing him to draw on them at ninety days for $30,000 or $40,000, and to send sterling or French bills.

On the 4th of March, 1837, Eustace drew a bill of exchange, dated at Richmond, upon R. and I. Phillips, payable fifteen days after date to the order of Henry Thassall, for $9,085.92, which was accepted by the drawees.

On the 20th of March, 1837, Joseph L. Moss conveyed to David Samuel certain property therein mentioned, situated on Walnut street, for the sum of $7,000.

On the 22d of March, 1837, Isaac Phillips and Joseph L. Moss, composing the firm of R. and I. Phillips, made a conveyance to Joseph M. Moss and David Samuel, reciting that the parties of the first part had been compelled to suspend payment, and conveying to the parties of the second part 'all and singular the joint and several property and estate of the said parties of the first part, and of each of them, real and personal, situate, lying and being, or due, owing or belonging to them or either of them, within the state of New York,' upon trust to pay certain persons therein mentioned. This deed was verified and recorded in New York, on the 23d of March.

On the 24th of March, 1837, Joseph L. Moss executed a warrant of attorney, to confess judgment in favor of John Moss, for $48,000, conditioned for the payment of $24,600.

On the 25th of March, 1837, David Samuel re-conveyed to Joseph L. Moss the same property which Moss had conveyed to him on the 20th of March.

On the 27th of March, 1837, a judgment was entered up, in the District Court for the city and county of Philadelphia, in favor of John Moss, against Joseph L. Moss, for the sum of $48,000, in conformity with the warrant of attorney just referred to.

On the 10th of April, 1837, Isaac Phillips conveyed to John Moss the life-estate which he derived from being tenant by the curtesy, in the Mulberry street property, which has been heretofore mentioned as having been conveyed to Sarah Moss Phillips, wife of the said Isaac, on the 29th of August, 1834. This property was subject to a ground-rent of $231 per annum, but is understood to be considered in Pennsylvania as a fee. The consideration received by Isaac Phillips is stated to have been $7,102.17.

On the 27th of May, 1837, Joseph L. Moss executed to John Moss a bill of sale of sundry articles of furniture, valued at $3,950, to pay in part the judgment which had been entered, on the 27th of March, against the said Joseph L. Moss.

On the 3d of June, 1837, Isaac Phillips executed to Joseph M. Moss a bill of sale of certain furniture, in consideration of $5,707.

On the 22d of June, 1837, Isaac Phillips, and Sarah his wife, and Joseph L. Moss, and Julia his wife, executed a deed to Joseph M. Moss and David Samuel, assigning their property generally, and particularly describing the two pieces of property which are the subjects of the present suit, upon certain trusts. After providing for preferred creditors, the deed directed the trustees to pay and satisfy in full, or ratably, all the other creditors who should, on or before the 21st day of August, 1837, at twelve o'clock, noon, and if resident in Europe, on or before the 20th of October, 1837, at twelve o'clock, noon, execute and deliver to the said R. and I. Phillips, a full, valid, and general release. The trust was accepted.

On the 8th of July, 1837, the property thus conveyed was valued by appraisers, appointed by the Court of Common Pleas, at $139,373.69. The Chestnut street property was valued at $15,000, and the Sixth street property at $20,000.

On the 2d of October, 1837, Phillips and Moss separately petitioned for the benefit of the insolvent law of Pennsylvania, but did not execute an assignment of their property to trustees. Two of the creditors opposed their discharge, but on the 19th of October their opposition was withdrawn, and Phillips and Moss were severally discharged.

On the 17th of November, 1837, Isaac Phillips, as the administrator of Robert Phillips, represented to the Orphans' Court that the said Robert, at the time of his death, was seised in fee of the Sixth street property; that he owed the petitioner the sum of $35,473.35, and prayed for an order to sell the property. Whereupon the court, on due consideration, granted the prayer of the petitioner, and awarded an order of sale accordingly.

In December, 1837, an action was brought by the Farmers' Bank of Virginia against Phillips and Moss, trading under the firm of R. and I. Phillips, in the District Court of the city and county of Philadelphia, upon the bill of exchange drawn upon them by Eustace as before mentioned.

On the 19th of January, 1838, Isaac Phillips, as administrator of Robert, reported to the Orphans' Court, that he had, on the 26th of December, sold the Sixth street property to David Samuel and J. Mora Moss, assignees of R. and I. Phillips, for $22,500, which sale was duly confirmed.

On the 22d of January, 1838, a judgment was entered in the District Court against R. and I. Phillips, at the suit of the Farmers' Bank of Virginia for the sum of $9,541.58, subject to the defendants' discharge under the insolvent laws of Pennsylvania.

On the 30th of January, 1838, Isaac Phillips, as administrator of Robert, executed a deed for the Sixth street property, to David Samuel and Joseph Mora Moss, assignees of R. and I. Phillips, which was ratified and confirmed by the Orphans' Court.

On the 19th of March, 1838, a fieri facias was issued upon the judgment obtained in March, 1827, by John Moss against Joseph L. Moss, for $48,000, the proceedings upon which were set aside on the 5th of May for irregularity.

On the 11th of May, 1838, Eustace filed a bill in equity, in the Court of Common Pleas, against R. and I. Phillips and their assignees, claiming that the proceeds of certain notes and bills should be specifically applied to the payment of his, the said Eustace's, claim.

On the 12th of May, 1838, an alias venditioni exponas was issued upon the judgment in the case of John Moss against Joseph L. Moss, and on the 4th of June the sheriff sold to John Moss, for $150, the interest of Joseph L. Moss in the Walnut street property.

On the 8th of June, 1838, the judgment which the Farmers' Bank of Virginia had obtained against R. and I. Phillips was entered for the use of Eustace, upon which a fieri facias was issued on the 12th of September. The sheriff levied upon several pieces of property, amongst which were the two which are the subject of the present suit, viz., the Chestnut street and Sixth street properties.

On the 29th of September, 1838, the subject of the insolvency of Phillips and Moss was brought before the Court of Common Pleas, which passed an order permitting the petitioners to sign the assignments annexed to their petitions, and directed the date of said assignments to be filled up, as of that day; and that the time from which said assignments should take effect should thereafter be determined by the proper authority: and the court refused to alter the appointment of assignees, made at the time the petitioners were sworn and discharged, to wit, in the term of December, 1837. The trustees gave bonds on the same day.

From September, 1838, to April 24th, 1839, there were five writs of venditioni exponas issued on the judgments which the Farmers' Bank of Virginia had against R. and I. Phillips, all of which writs and the proceedings under them were set aside for irregularity. On the 24th of April, a pluries venditioni exponas was issued. But before the sale was made, viz., on the 30th of April, 1839, the assignees of R. and I. Phillips sold at public sale, at the Philadelphia Exchange, the Chestnut street and Sixth street properties to William R. Hanson, one of the defendants in the suit below, and one of the present plaintiffs in error, at the following prices, viz., the Chestnut street property for $16,000, and the Sixth street property for $20,500. Both properties were advertised as clear of all encumbrances, title indisputable. At the sale the following notice was read:

'Bidders will please take notice that the property on the north side of Chestnut street, 42 feet west of Schuylkill Seventh street, being 66 feet front, by 158 feet deep; and also that on the west side of Delaware Sixth street, between Market and Chestnut streets, formerly known as Rubicam hotel, have been levied upon as the property of the late firm of R. & I. Phillips, and are actually advertised by the sheriff; and that the right of the assignees of R. & I. Phillips to convey any title to either of said properties is disputed and denied.

C. FALLON.'

On the 10th of May 1839, the assignees executed deeds to Hanson for the Chestnut street and Sixth street properties.

On the 20th of May, 1839, the sheriff, under the last writ of venditioni exponas, issued in the case of the Farmers' Bank of Virginia against R. & I. Phillips, set up and exposed to public sale several pieces of property, amongst which were the Chestnut street and Sixth street properties, for which Christopher Fallon became the highest bidder and purchaser.

On the 22d of June, 1839, the sheriff executed a deed of the above to Fallon, who, on the 11th of September conveyed them to Eustace, the plaintiff in the suit below.

In October, 1839, Eustace brought an ejectment to recover possession.

The cause came on for trial in October, 1840. The facts stated above were established by proof, and evidence farther offered to show that the property in Sixth street was recognized by the firm of R. & I. Phillips as partnership property; that an account was opened with it on the books, and the taxes paid by the firm. On the part of the defendant, evidence was offered to show that, at the time of the death of Robert Phillips, there was another brother living besides Isaac, who was called Samuel, and also that two children of a third brother, named Lawrence, were living; that the Walnut street property was not included in the assignment, because it was thought that the encumbrances upon it were so heavy as to destroy its value as property.

In an early stage of the trial, the counsel for the plaintiff gave notice to the defendant to produce the books and papers belonging to the firm of R. & I. Phillips. After the testimony was closed, the court called on the plaintiff's counsel to proceed to address the jury, at which time a large number of books were brought into court, said to be the books of R. & I. Phillips, and the inspection of them was offered to the plaintiff's counsel; but the court said it was too late, and they would not permit time to be taken up in that stage of the case.

The court having delivered a charge to the jury, a verdict was found by the latter for the plaintiff; but the following exceptions were taken to the charge:

'Mr. Joseph L. Moss and Isaac Phillips, the defendants in the judgment, have been divested of all their interest, either by their voluntary assignment in June, 1837, and the proceedings under the insolvent act in October following, or the sheriff's sale in May, 1839. They can set up no title adverse to the plaintiff, and though the assignment in June may by perfectly valid, they have no right to retain possession, unless, perhaps, with the assent of the assignees, under their title, as distinct from theirs. Mr. Joseph M. Moss and David Samuel have no legal estate in the property; their deed to Mr. Hanson divested their interest in May, 1839; they have, therefore, in themselves, no right to retain possession; though, if they are in possession, they may defend under the assignment, and the title of Mr. Hanson, as a purchaser from them, unless such privity exists between them and the defendants in the judgment, as prevents them from setting up an outstanding title–a question, which is not very important in this case, and might rather tend to make it more complicated than is necessary, by discussion.'

And thereupon the said defendants further excepted to the following matters or propositions of law contained in the said charge to the jury, to wit:

'It is farther objected to the plaintiff's right, that having accepted a judgment, subject to the discharge of the defendants under the insolvent law, he took it, subject to all its incidents and effects, whereby he can come upon the property of the debtors only as a general creditor, on an equal footing with all others, through the intervention of the trustees, or in their name. This is, however, not the true construction of the agreement; it means that by confessing judgment, the defendant waived no rights or exemptions, which accrued to him by the discharge; it left him free to claim freedom from arrest on any process on the judgment, or any other right secured by the law; but it left the plaintiff at liberty to pursue any property which had belonged to the defendants, by a proceeding adversary to a purchaser under him, or any assenting creditor. If, notwithstanding any previous assignment, either voluntary or under the insolvent law, there was any property to which his judgment could attach, there was nothing in the assignment or its legal effects which prevents the plaintiff from pursuing it by legal process, till by its consummation by a sheriff's sale and deed acknowledged, he put himself in a position to assert his pretensions in a court of law, or which could, in any manner, compel him to come in under either assignment, or lose his debt.

'As a judgment creditor, he might contest with the assignees under the voluntary assignment, the validity of their title, or that of any person claiming under them, or the right of the trustees under the insolvent assignment; and if he could defeat the right thus claimed, the property was open to his claim, if he could establish it. In endeavoring to do so by this suit, we think he is not acting inconsistently with the terms on which the judgment was confessed; the defendants disclaim all interest in the property from the time of their first assignment, and are, therefore, not competent to question the plaintiff's right to try title with others. On a contrary construction, he would be compelled to acquiesce in the exclusion from the benefits under the assignment, by not having released in time; or if it was inoperative, to come in only as a general creditor for his ratable proportion of the available effects of the insolvents. We think this objection is not sustained.'

And thereupon the said defendants further excepted to the following matters or propositions of law contained in the said charge to the jury, to wit:

'It is next objected that the plaintiff is precluded from contesting the validity of the assignment of June, 1837, by having filed a bill in equity, admitting its effect, and claiming under it, on the same principle which binds a creditor who takes his dividend under it. That principle is undoubtedly a sound one, but we cannot perceive its application to this case.

'The bill states the fact of an assignment–its acceptance by the assignees–their action under it, with the consequences of such action on the equitable rights of the plaintiff; without affirming or denying the legal efficacy of the assignment, he alleges that the assignees have made, or are about to make a disposition of certain specified notes, in violation of an agreement between the plaintiff and the assignees, prejudicial to his interest and rights. He asks the court to interfere, for the purpose of protecting him from the effects of the assignment, to prevent the assignees from diverting the notes or their proceeds from the purposes agreed upon by the assignors before the assignment; he avers this agreement to be binding on the assignees, who are not authorized, on principles of equity to apply this fund to the purposes of the assignment. It is consequently a disaffirmance of the terms and conditions prescribed by the assignors–a claim to the whole of the notes and proceeds, for his own sole benefit, in opposition to the claims of every other creditor. The whole bill is founded on the equitable obligation and duty of the assignees to apply this portion of the assigned effects, contrary to the express terms of the assignment, on the ground that for the causes alleged, the law of equity controls its effect, and must regulate their distribution of the funds. On these principles the equitable claim of the plaintiff to this portion of the personal property assigned, is as adverse to the assignment as his legal claim to the real estate in controversy. The difference between the two claims is this: in the bill in equity the plaintiff avers the delivery of the notes to the assignees–that they were payable to, and endorsed by Robert and Isaac Phillips–that having then come to their hands, his remedy to recover possession of the unpaid notes, or the proceeds of those which are paid, is in equity. Whether his remedy is at law or in equity, is for the court, before whom the bill is pending, to decide; the object of a suit in either court would be the same; the question in both must by–in whom is the right to the notes or their proceeds–as it is in this case, in whom is the right of possession to the real estate? In the one case the validity of the assignment in passing the right to these notes to the creditors under the assignment, is as much contested by the plaintiff as it is in the other; the fact of an assignment is admitted in both, but the plaintiff takes different modes of avoiding its effects.

'Having accepted and acted in execution of the trust, the assignees cannot deny the validity of the assignment; the law places their action under the supervision of a court, to whom the plaintiff applies for the application of a specific fund to his exclusive benefit, notwithstanding the contrary application by the assignees, under the requisitions of the assignment.

'Had the plaintiff resorted to a court of equity for a remedy as to the land in controversy, in virtue of his sheriff's deed, he must have stated his case, as he has done in his bill in equity in relation to the notes, praying for a reconveyance of what was not sold, an account for, and payment of what had been sold, on the ground that the property did not pass in equity by the assignment, and that in the hands of the assignees, it remained subject to his paramount right as a creditor attempted to be defrauded by it. Broader ground might be taken in the latter than in the former case; the plaintiff might rest his claim to the notes, on the principles of equity implanted in his case, without an allegation of fraud in fact, while he might put his claim to the land on every ground of fact, law, and equity, which his case covered; but when his object is to paralyze the assignment, either as to the notes or land, he cannot be held to affirm or claim under it.

'So long as he claims adversely to the terms and conditions upon which the assignees must act pursuant to the assignment, he may, according to the nature of his case, apply to a court of equity, to compel them to execute the trust, according to their legal and equitable obligations; or apply to a court of law, on the ground that the assignment passed no legal right to personal or real property. In resorting to a court of equity in one case, and a court of law in the other, the plaintiff is at liberty to choose his ground in affirming or disaffirming the legal effect of the assignment in creating a trust. The assignees are precluded from a choice; they have fastened on themselves a trust, either for the assenting or dissenting creditors, which the appropriate court will carry into execution, according to its settled principles. As the trust may be a legal or equitable one, its execution is enforced at law or in equity; as to one portion of the assigned property, the proper remedy may be at law, and as to the other, in equity; yet the pursuit of one can be no bar to the other, unless the grounds respectively assumed are wholly incompatible. A creditor who asks for such an execution of a trust as puts him in the same situation as if a trust never existed, and defeats the objects intended to be effected by the creation of the trust, by directing the subject of the trust from those for whom it was designed to himself, cannot be said to claim a benefit from the trust, or to affirm what he disaffirms. By pursuing this course, he gives up no right which he could assert at law, by invalidating the instrument creating the trust–his objects are the same; the results of a decree in equity, or a judgment at law, are the same, when his rights are established to the same extent as they existed before the assignment, or as if it had never been made. Should the plaintiff obtain a decree in his favor, as to the notes and their proceeds, he thus far annuls the assignment, that it no longer impairs his rights, and is used by a court of equity as the mere instrument for the purposes of justice, and a conduit to the equitable jurisdiction which it exercises over the trustee. Should he obtain a judgment at law, an execution gives him all the fruits of a decree in equity–the different modes of proceeding being but the varied means of effecting the same object. We are, therefore, of opinion, that the filing and pending of the plaintiff's bill in equity does not, in law, impair his rights to proceed by ejectment to recover the property now in dispute, any more than bringing and prosecuting the present action would prevent him from prosecuting his bill in equity. This objection must consequently fail.'

And thereupon the said defendants further excepted to the following matters or propositions of law contained in the said chararge to the jury, to wit

'Another objection to our entering on an investigation of this case is founded on the decisions of the Supreme Court of this state, in the case of Fassit v. Phillips, which it is said established the validity of this assignment, and is obligatory on this court, on the principles which it has adopted and acted on uniformly. We cannot so view it. That was a bill in equity, praying for an injunction against any proceedings under the assignment, on account of its invalidity for the causes set forth in the bill, being acts of alleged fraud on the part of Joseph L. Moss, one of the assignors; an injunction was granted, but on the coming in of the answer, there appeared a positive denial of fraud, and of every fact on which the equity of the plaintiff depended. A motion to dissolve the injunction was made and heard on the bill and answer alone; the court dissolved the injunction, the only effect of which was, that assuming the answer to be true, as the court were bound to do in the then state of the case, all action upon it was suspended till evidence was taken, and the cause came to a final hearing, when it will be competent for the plaintiff to disprove the answer, and support the allegations of his bill. In the mean time, the merits of the cause remain as open as before; the injunction was granted on the Prima facie case stated in the bill and exhibits, but as the whole equity of the plaintiff was denied, the prima facie case was rebutted, whereby the parties now stand as if the court had not acted on the bill; an interlocutory order, in granting an injunction, or taking it off, has no effect on the rights of either party at the hearing. The facts set up or denied in the answer, can neither be considered as established or negatived; for the purposes of the motion to dissolve the injunction, the answer was taken as true; it has performed its office, leaving its future effect dependent, in the opinion of the court, on the effect of opposing evidence on the part of the plaintiff. Had the decisions of the court been made on a hearing of the cause on the pleadings, exhibits, and evidence, it would have been entitled to great weight in our mind, and yours, on the facts before them, and perhaps conclusive on matters of law; certainly so, if their decree had been founded on any state law, statute or common, which was local, and not in conflict with the laws of the Union.'

And thereupon the said defendants further excepted to the following matters or propositions of law contained in the said charge to the jury, to wit:

'It has also been contended, that whatever may be the effect of the assignment of June, 1837, on the rights of the parties, or if it is wholly void, the estate of the assignors passed to the trustees appointed by the court, on the discharge of Moss and Phillips, under the insolvent law of 1836, by the force of the law and the discharge, from the time of the filing the petitions for the benefit of the act, so that there was no interest in the defendant on which the judgment under which the plaintiff claims could attach. If this position is well taken, it takes away all right in either the plaintiff, the assignees, or Mr. Hanson to the property in controversy; for if it is still vested in the trustees for the benefit of all the creditors of the insolvent, without any assignment made by them, then as the trustees have made no conveyance, the plaintiff's judgment was no lien on their rights; and if the assignment of June, 1837, is void, Mr. Hanson has no right.

'As this position is founded on the words of the thirty-fourth section of the insolvent act, it becomes necessary to examine its various provisions, in order to ascertain the intention of the legislature in this particular.

'By the first section, the courts of Common Pleas have power to grant relief to insolvent debtors, 'on application made in the manner hereinafter provided.' Purdon, 508.

'Sect. 2. 'The jurisdiction of the said court must be exercised as follows, and not otherwise,' viz.: 'by sect. 9, the petitioner must present a statement of his estate, effects, and property, debts due by him, &c.;' by sect. 12, he must exhibit a true account of his debts, credits, and estates, and shall satisfy the court that he has neither concealed or conveyed, for his own use, or for any of his family or friends, or whereby to expect any future benefit to him or them, any part of his estate, effects, or credits.

'Sect. 13 directs, that if he shall be entitled to relief, he shall take an oath that he will deliver up, and transfer to his trustees, for the use of his creditors, all his property, debts, rights, and claims, &c.; that he has not given, sold, or intrusted any part of his property, rights, or claims, to any person, whereby to defraud his creditors, or any of them, or to receive or expect any profit, benefit, or advantage thereby.

'Sect. 14. 'The petitioner shall thereupon execute an assignment of all his estate, property, and effects whatever,' to such trustees as may be nominated by his creditors, or appointed by the court.

'Sect. 15. When such assignment shall have been executed, the court shall make an order of discharge; and then follows the thirty-fourth section, enacting that, 'The trustees appointed as aforesaid, shall be deemed to be invested with all the estate and property of the insolvent, at the time of filing his petition, subject to existing liens, and the trustees shall take possession of such property and estate, and may sue therefor in their own names, as well as for debts and things in action, to which there are these provisos: 1st. That no purchase or assignment of real estate in the county, made bona fide for a valuable consideration, before the assignment, to any person not having actual notice of the petition, shall be impeached thereby. 2. Nor if situated out of the county, if so sold or assigned before the recording of the assignment in the other county. 3. Nor a sale of personal property to any person, not having actual notice of the petition or assignment. 4. Nor if any person pays a debt, or delivers property to the insolvent, without actual notice, shall he be liable to pay or deliver the same to the trustees.

'Sect. 36. 'If any insolvent shall, prior to such assignment, have conveyed and part of his property to his wife and children, or either, or to any one in trust for them, or have conveyed to any other person with intent to defraud creditors, the trustees shall have power to recover and dispose of the same, as fully as if ...


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