191 Mass. 461 | Mass. | 1906
At common law a voluntary assignment by a debtor of his property for the benefit of creditors when accepted by the assignee establishes a trust the enforcement of which may be compelled in equity by a creditor or the assignor, either of whom also may demand and is entitled to an accounting by the assignee of his administration of the assets. New England Bank v. Lewis, 8 Pick. 113, 118. Pingree v. Comstock, 18 Pick. 46. Noyes v. West, 3 Cush. 423. Bouvé v. Cottle, 143 Mass. 310. Hudson v. J. B. Parker Machine Co. 173 Mass. 242. Sawyer v. Cook, 188 Mass. 163, 165. By assignments duly executed, and delivered by the defendant, the Tuttle-Smith Company, the assignees who accepted the trust were vested with the title to all its corporate property, which they were to marshal and administer for the benefit of such creditors as should accept in writing their provisions. While the bill alleges that the second was made in substitution for the first, there was but one trust created by both assignments, although one of the assignees named in the second instrument is omitted from the first. By mesne conveyances the plaintiff has acquired all the title and interest of the creditors, who also are alleged to have duly become parties as required, as well as the residuary interest of the corporation, and therefore he is clothed with the right of each to demand and receive from the defendant assignees a full accounting. If by the established procedure of a court of equity such a bill cannot be maintained unless brought in the name of his vendors or assignors, yet by R. L. c. 173, § 4, the right to sue in his own name has been unrestrictedly conferred. Walker v. Brooks, 125 Mass. 241. Gilman v. American Producers’ Controlling Co. 180 Mass. 319. Upon referring to the allegations of the bill in substance they set forth the creation of the trust, its acceptance by all of the assignees, their unfaithful administration, either jointly or severally in permitting a large portion of the assigned property to be wrongfully appropriated by the Hood Rubber Company, one of the creditors, and the
During their incumbency, and in the various unlawful transactions described in the bill, the assignees are alleged to have acted under the legal advice of the defendant Knowlton. An allegation of this nature with nothing further would be insufficient to make an attorney at law responsible to third parties for the fraudulent acts of his clients, who merely consulted him as to the law applicable to an intended course of action. Hoosac Tunnel Dock & Elevator Co. v. O’Brien, 137 Mass. 424, 427. The plaintiff, however, further avers that the defendant actually received coincidently with the assignees the entire assets of the debtor so far as they consisted of personal property, and actively and in collusion joined with Hood and his associates in the payment and transfer to the Hood Rubber Company, and also has received and now retains a substantial balance in money due to the creditors, and hence to the plaintiff, which he not only holds jointly with them, but also likewise refuses to account for or to pay over. By his demurrer he admits these allegations to be true, and therefore comes within the principle that persons who participate in the fraudulent conversion of property in their possession, knowing at the time that it has been delivered upon a trust, or holding trust funds for which they refuse to account, are accountable in equity in each instance to those for who;3e benefit the estate or fund should have been administered, and may be joined with others similarly liable where such misappropriation and misconduct consists of a series of wrongful acts in which all have taken part although perhaps in unequal degree. LeBreton v. Peirce, 2 Allen, 8, 12. Chesterfield Manuf. Co. v. Dehon, 5 Pick. 7, 10. Otis v. Otis, 167 Mass. 245, 247. If with knowledge of this misconduct by the several participants, or with such indifference to their rights as to permit superior equities to intervene, the creditors and their debtor, in whose place the plaintiff stands, failed to move promptly in the assertion of their respective rights either or both might have been barred by the time elapsing since the
From this examination of the bill it follows that as a case is stated for equitable relief against the defendants, who have demurred, and the suit having been seasonably instituted, their demurrers are not well taken, and must be overruled.
Decree accordingly.