247 F. 163 | D.N.J. | 1918
This is a suit by a trustee in bankruptcy to set aside a conveyance of certain real estate made by a bankrupt, through an intermediary, to his wife, the defemkmt, upon the ground
It is a necessary conclusion, of course, that, if the four months limitation dobs not apply in a case brought under section 70e, neither is the question of the insolvency of the bankrupt at the time of the conveyance of any materiality, except it be made so by the state law, because one is as essential an element of section 67e as the other. It is also the right of a trustee to avoid a transfer, under section 70e, although there are no creditors who, because they had no liens or judgments, would have been in a position, at the time of the filing of the petition in bankruptcy, to attack the transfer. Fourth St. National Bank v. Millbourne Mills Co’s. Trustee, supra; Mueller v. Brass, supra; Thomas v. Roddy, supra; In re Standard Telephone & Electric Co., supra. Not only is the language of section 70e sufficiently comprehensive to alone justify this latter rule, as the above-cited cases point out, but, since all of them were decided, the amendment of 1910 to section 47a specifically vests a trustee with such a lien as is sufficient to enable a creditor to attack a fraudulent conveyance in a court of equity in most, if not all, states. Hence it follows that the plaintiff may attack the conveyance in question, irrespective of the solvency or insolvency of the bankrupt at the time the conveyance was made, provided that it could have been attacked by any creditor in the courts of New Jersey, had not bankruptcy intervened.
While any final settlement that they may have made, would not, probably, under all circumstances, be binding on the Court of Chancery of New Jersey, if the wife should appeal to that tribunal for separate maintenance and alimony under the New Jersey statutes (Boehm v. Boehm [N. J. Eq.] 101 Atl. 423), it would surely be taken into account in determining what, if anything, should be awarded her (Moran v. Moran [N. J. Eq.] 2 Atl. 777; Boehm v. Boehm [N J. Eq.] 101 Atl. 425; see, also, cases cited in 14 Cyc. 770). and furthermore, it would protect the husband, providing it was reasonably
Therefore, as no actual fraud has been proven, and as the facts necessary, under the New Jersey rule, to warrant the finding of constructive fraud, in whole or in part, are not present, it follows that the bill must be dismissed, with costs.