65 Vt. 594 | Vt. | 1893
The opinion of the court was delivered by
The orator, as administrator of the estate of George W. Curry, seeks to have set aside certain mortgages executed by his intestate to the defendants.
Curry was adjudged an insolvent debtor within four months from the time of the execution of the mortgages, and the orator was appointed assignee of his insolvent estate; but, before the mortgages had been adjudged void, or the as-signee had brought an action for the recovery of the property or its value, Curry died, the proceedings in insolvency were discontinued and the orator was appointed administrator of his estate.
R. L. s. 1883, provides that, “ If a debtor dies after the filing of the petition by or against him, the proceedings shall be discontinued and the debtor’s estate settled in the probate court like other estates of deceased persons.”
The words, “ Like other estates of deceased persons,” admit of no doubtful construction, they mean just what the language imports, and the simple question is, does the law relating to the settlement of the estates of deceased persons authorize a recovery in. this case? R. L., s. 2,162, authorizes an executor or administrator when there is a deficiency of assets in his hands to commence and prosecute to final judgment any action or suit for the recovery of real or personal estate fraudulently conveyed by the deceased; but the property in question was not fraudulently conveyed.
The master has failed to find such facts as would justify the court in so holding. The property was transferred for the purpose of securing a debt honestly due and owing from the orator’s intestate to the defendants.
There is nothing in the law relating to the settlement of estates of deceased persons that declares such a transaction fraudulent or authorizes an administrator to recover the property. The orator’s intestate had a right to give and the defendants to take security for the payment of their debt and the defendants cannot be lawfully deprived of this security except by insolvency proceedings ; and the aid of these proceedings cannot be invoked because the debtor is dead and the statute declares that his estate shall be settled, “Like other estates of deceased persons.”
They were not divested of their title to the property by the adjudication in insolvency. The question of their 'right to
The property in question never came to the assignee as assets of the estate. Property conveyed in fraud of the law relating to insolvency is not assets in the hands of the as-signee, and he is not accountable for it until there is a recovery as provided in sections 1,860 and 1,861. He does not take such property by assignment from the court of insolvency (R. L., 1,820), but takes it by recovery in an action authorized by sections 1,860 and'1,861. The steps necessary to divest the defendants of their property could be taken only by the assignee. They were not taken. The orator has ceased to be assignee, and he must stand upon his rights as administrator of a deceased person’s estate, and not upon the rights of an assignee of an insolvent debtor’s estate.
II. The master finds that at the time the chattel mortgage was given, it was agreed that the mortgagor might dispose of the goods as he had been doing and apply the avails thereof in liquidation of the defendants’ claim, and that the
The case of Peabody, assignee, v. Landon, 61 Vt. 318, is full authority for this holding.
III. The defendants have lost nothing by not seasonably insisting upon the. demurrer contained in their answer. • By omitting- to do so they have not waived their right to insist that the orator establish his right to the property as against them.
IV. The orator’s claimed lien upon the mortgaged property for the payment of the expense incurred in the- insolvency proceedings is inoperative as against the defendants.
The facts that defeat his claimed title to the property itself defeat his claimed lien. The fact that there are no assets does not change the law. An assignee is bound to know before incurring expense whether there are av-ailáble assets, out, of which it can be paid.
.The orator had no right to incur expense, relying upon the property in question for payment, until the mortgages were adjudged void and he had recovered the property or its .value.
He has no right to reimburse ■ himself out of the defendants’ property until their mortgages have been adjudged void and the property has'become assets of the insolvent estate.
The mortgages can. never be adjudged void, nor the property or its value recovered, because the remedy provided by the statute is inoperative since the discontinuance of the insolvency proceedings.
V. The master .has found that the defendants, in taking .possession of the goods included in their chattel mortgage.
The ffio forma decree of the court of chancery dismissing the bill is affirmed and the. cause remanded. • ,
I am unable to concur in the views of my associates as expressed in the first point i-n'the- opinion. The insolvent, law was enacted subsequently to the - general law for the settlement of estates, and brought a new element into-their settlement. R. L. 1,883, providing that if the debtor died pending the proceedings in insolvency such proceedings shall be discontinued and the debtor’s estate settled in the probate court like other estates of deceased persons, does not mean that the estate shall be settled, disregarding what has been done in the insolvency -proceedings. Such proceedings may have progressed so far as to adjudicate-that the assignee shall recover payments and that attachments and conveyances are void and must be set aside. They may have proceeded so far that the estate is in money in the assignee’s hands awaiting distribution only. -A judgment in favor of the assignee to recover a payment uncollected on the death of the insolvent, I think, could be en