10 Paige Ch. 223 | New York Court of Chancery | 1843
The question as to the validity of such an assignment as this, is no longer an open question in this court. In the case of Wakeman v. Grover, (4 Paige’s Rep. 41,) this court decided that a debtor could not put his property beyond the reach of his creditors at law by assigning it to trustees to pay debts, without settling the rights of creditors under the assignment; leaving it to the assignees to give such future preferences in payment as they might deem proper. It is true that ground of objection to the assigument of Grover & Gunn was not distinctly passed upon by the majority of the members of the court for the correction of errors, when that case was brought there by appeal; as that court wished to settle definitively another principle of great importance to the rights of creditors, which had for the first time been distinctly decided
Many of our most enlightened judges have regretted that the principle of permitting an insolvent to make a voluntary assignment of his property, and to give preferences in any way, should ever have been adopted. Judge Holman, of the district court of the United States for Indiana, speaks of it as <c that most iniquitous principle of the common law-recognized in most of the states, which authorizes an insolvent debtor to prefer one creditor over.another of equal or even superior merit.” Judge Judson, of Connecticut, refers to it as a principle constituting the insolvent an agent to obtain money from one and bestow it upon another, at his will and pleasure.- And Judges Story and Baldwin, of the supreme court of the United States, both condemn the principle of giving such' preferences, not merely as inequitable and unjust as it regards creditors, but as injurious in its effects upon the community. The district attorney of the United States for the district of Ohio, in his communication to the judiciary committee of the senate of the United States, says, one of the greatest evils growing out of the failures and distress of the past, has been the unjust and fraudulent assignments made by debtors in failing circumstances, by which certain creditors acquire preferences over others equally worthy; that a very large proportion of the real and personal estate in his district has, under the operation of those assignments, been tied up, the debtor remaining in possession, carrying on his business as usual, and appropriating all the proceeds of his property and earnings to the payment of some one debt to the exclusion of all others ; and that there is no limit to the fraud and injustice perpetrated by such means. (See Rep. of Jud. Committee on Bankrupt Law, Feb. 3d, 1843.) This is indeed strong language ; but it is merely a highly colored picture of some of the evils arising from the sanction which the courts have given to an erroneous principle, as injurious to the just rights of creditors as it is dangerous to the morals of the community. I cannot therefore sanc
I think the counsel for the defendants is right in supposing that the office of the deputy sheriff was vacated by the resignation of the sheriff; and that to enable the deputy rightfully to discharge the duties of the office, under the person upon whom the duties of sheriff had devolved by statute, a new appointment should have been made, by the under sheriff, in writing, and recorded in the county clerk’s office • and that the deputy should have been resworn, as directed by the statute upon an original appointment by the sheriff. (1 R. S. 379, § 74.) Under-sheriffs, and other deputies of the sheriff, being appointed only during the pleasure of the sheriff, would, by the common law, cease to be such the moment that will was determined, either by the death, removal, or resignation of the person under whom they held the appointment. (Atkins. Sher. Law, 40. Watson’s Off. of Sher. 32.) To remedy this common
It is true there is a general provision of the revised statutes, to which the court was referred upon the argument, which declares that, in all cases not otherwise provided for, each deputy shall possess the powers and perform the duties attached by law to the office of his principal, during a vacancy in such office, and during the absence of his principal. (1 R. S. 117, § 7.) But the restriction of that provision to cases not otherwise provided for, prevents it from reaching the general deputies of the sheriff, whose offices, by the common law, terminate with that of their principal • except as to the completion of acts w'hich he could himself complete after the termination of his office. For as to all other duties of the office, they are otherwise provided for, in those sections of the revised statutes which cast the duties of the office of the principal upon the under-sheriff, or coroner, or person appointed by the first judge.
There is not sufficient in the admission of facts in this case to enable me to say that Poppino was defacto a deputy of the under-sheriff of Steuben county at the time the execution mentioned in the complainant’s bill was levied upon the property in controversy. Where there is but one office there cannot be an officer de jure and an officer de facto, both in possession of the office at the same time. And as the under-sheriff was in the rightful possession of the office of sheriff, a defacto deputy of the former sheriff could not levy an execution, so as to give the complainants any rights. But to make the act valid as to third persons it must appear he was defacto in the exercise of the office of a deputy of the then acting sheriff. By the common law no particular formality was necessary to be observed by the sheriff in making a deputy; and it is said he might be appointed by parol. (Dalt. 457. Atkinson, 31. Watson, 28.) And though the statute now requires the appointment of the deputy sheriff to be in writing and recorded, and that he shall be sworn before he enters upon
The question whether there was any valid levy of the execution is important to the rights of the parties in this case, so far as relates to the property seized by Poppino. For the complainants not having exhausted their remedy at law, by the return of an execution unsatisfied, they can only set aside the assignment, in this suit, so far as it affects the real estate, upon which they have obtained a lien by the docketing of their judgment, and the personal estate upon which the issuing of an execution to the sheriff of Steuben county has given them a lien j that is, the personal property, liable to execution in that county, which remained in the hands of the judgment debtor, or of his assignees, when the execution was delivered to the proper officer to be executed. (Beck v. Burdett, 1 Paige's Rep. 308. Mohawk Bank v. Atwater, 2 Idem, 58. McElwain v. Willis, 9 Wend. Rep. 548.) In this case the defendants state that they have paid off an execution, which was a previous lien upon this personal property for more than its whole value. And if the property is disposed of and converted into money before the complainants can get a lien upon it by the issuing of a new execution, it is probable they may be pro
All that the court can do in the present case is to declare the assignment fraudulent and void, as against the complainants, so far as it purports to assign or convey to the assignees any real property of the defendant Halliday, upon which the judgment of the complainants is a lien, or would have been a lien if such assignment had not been made, and which had not been conveyed by Halliday to a bona fide purchaser at the time of docketing the judgment. And as to all the rest of the property embraced in the assignment the bill must be dismissed, without prejudice to any rights which the complainants, or the supposed deputy, may have at law; or to any rights which the complainants may have in this court to set aside the assignment as to the residue of the property, after a new execution shall have been issued, so "as to obtain a lien upon the assigned property, or after an execution shall have been issued to the proper oEcer and returned unsatisfied. Such a decree will protect both parties in all their legal and equitable rights, so far as it is proper to protect them, and without disturbing any settled principle. And, under the circumstances, this appears to be a proper case to leave the parties respectively to pay their own costs.