28 Vt. 71 | Vt. | 1855
was delivered by
It is not pretended that the trustees are chargeable in this case, unless a liability is created under an assignment of property to them by the Messrs. Harts, on the 23d of September, 1852. The property transferred to them consisted of real and personal estate, and was to be disposed of, by them, for the payment of their debts, and debts due to other creditors mentioned in the assignment. If that assignment is valid, the trustees should be discharged, as it appears from their disclosure, that the property is insufficient to pay the debts for which it was transferred to them. But if the assignment is void, either at common law or by statute, the trustees are chargeable under this process, and the property assigned to them must be treated as goods and effects in their hands belonging to the principal debtor. The Comp. Stat. 262, § 46, contains express provisions to that effect. -In looking at this assign
Treating that assignment as inoperative for the purposes for which it was made, the important questions in the case arise, as to the extent of the 'liabilities of the trustees on their disclosure. The trustees have received a considerable sum of money from the sale of personal property, and much remains uncollected. They have also received money for rents, boarding, and on the sale of, real estate. The county court ruled that the assignment was invalid, and that the trustees were liable for the property received by them under the assignment to the amount of the plaintiffs judgment. That ruling, we think, cannot be sustained under the provisions of
In ascertaining that balance, we think, as the facts now appear in the case, that the trustees are not chargeable for the money received on the sale of the real estate. So far as these plaintiffs are concerned, the commencement of this suit will probably prevent them from levying their execution against the principal defendants on the real estate included in that assignment. It was competent for the plaintiffs, in the first place, to treat the assignment as void and proceed at once by an attachment of the property, and hold the same independent of that assignment or of any right of the assignees to it; or they could have treated the assignment as operative and valid, and charge the assignees as trustees under this
From the amount which may be found in the hands of the trustees there are various matters, stated in the disclosure, which the trustees may have a right to retain. It appears that the Messrs. Harts were indebted to the trustees and that the trustees were also liable for them as indorsers and as sureties; The particulars in relation to that indebtedness are not stated. Whatever that indebtedness may be, we have no doubt as to the right of the trustees to retain that amount from those effects in their hands-. That right is not only given by statute, but such have been "the decisions in this state, in the cases off Godard v. Hapgood, and Scofield v. Sanders, 25 Vt. 851, 181. Whether that right extends to indorsers and sureties who have not paid the debts, or assumed their payment, we are not now called upon to decide. The decisions, as yet, have not been carried to that extent. From the cases to which we were referred in 4 N. H. 469; 12 N. H. 105; 12 Mass. 140, it would seem that this right of the trustees, to retain the amount of tliéir debts, exists independent of the statute, when the assignment is not fraudulent in fact. As between the parties, such assignments are good. They were valid and favored at common law ; but they are now, in England, regarded as inoperative and void on the ground that such assignments contravene the principles and policy of the general bankrupt act. Those reasons have no existence in this state; and, therefore, independent of the act, such assignments have been sustained. The difficulties which have
The trustees have the right also, as against the plaintiffs, to deduct from the amount in their hands, the expenses of keeping, tailing care of, and selling the property, as well as a reasonable compensation for their services. Those were duties devolving upon them to discharge as assignees, and, if they have the right to sell the property for the payment of their debts, they have also the right to pay reasonable charges in the performance of those duties.
The county court having held that, as the assignment was void, the trustees were chargeable to the amount of the plaintiff’s judgment, no adjudication has been had upon the various matters which enter into the investigation of the case in ascertaining the balance for which the trustees are chargeable under the statute. It is within the exclusive province of the county court to determine those matters. "When the facts in relation to the particular claims are found, and the balance ascertained, the case can then properly be brought into this court.
The judgment must he reversed, and the case remanded.