83 Ky. 649 | Ky. Ct. App. | 1886
delivered the opinion of the court.
Tlie appellants, Samnel Coffin and others, citizens •of Kentucky, holding claims against the appellee, Kelling, who was a citizen of Ohio, attached certain ■coke and barges as the property of Kelling, with a view of subjecting it to the payment of their debts.
Wolfe, another appellee, and also a resident of ■Ohio, claimed the property by virtue of a deed of assignment made to him by Kelling for the benefit of creditors prior in date to the attachment levied by the appellants.
As assignee of Kelling, Wolfe was permitted to intervene, and upon the hearing in the court below it was adjudged that the assignee for creditors was entitled to the property as against the attaching ■creditors, and of that judgment the latter complains.
The position assumed by counsel for the appellant is, that as the attaching creditors were citizens of
In that case this court seems to have been reluctant to pass on the question, because, as is plainly intimated, no direct judicial decision had been referred to on the subject, and proceeded to deny pri•ority to the appellant (the assignee), because there was nothing in the record showing that any security .had been given by the assignee for the just and ■proper distribution of the debtor’s estate or its proceeds between creditors, holding that “comity re- ■ quires reciprocity.” Local bankrupt laws, as said in that case, have proprio mgore no extra territorial ■ operation, the principle of international comity not requiring the courts of one government to enforce such a law to the prejudice of the domestic creditors. The .court in that case, however, recognized the difference between an assignment by law, which is local, and an assignment by contract; and while it must be conceded that the reasoning in Johnson v. Parker conduces to sustain the claim of the attaching creditor, the question here made was not deter- ■ mined, but the cáse decided adverse to the assignee ::for other reasons.
Such an assignment as.was made in this case would have been valid here, and the. rights of creditors are secured by the bond of the assignee, which seems-to have been the principal objection in the case of' Johnson v. Parker.
In Guillander v. Howell, 35 N. Y., 657, where the assignment preferring a creditor was made in New York, and at the time personal property embraced in the assignment was in the State of New Jersey, and was seized by a resident of the latter State under an attachment, the New Jersey creditor was allowed to subject it, because by the law of that State such preferences were invalid; and when such questions arise the right of the assignee to claim personal property located in another State than that
If such an assignment, voluntary in its character, made by the debtor for his creditors is valid 'where made, it should be upheld everywhere, unless the policy of the State where it is sought to be enforced forbids it. Chancellor Kent says:
“The acts of parties valid where made, shall "be recognized in other countries, provided they be not contrary to good morals, nor repugnant to the policy and positive institutions of the State.”
The authorities relied on by counsel for the appellant apply to assignments made by- operation of law, or to the assignment of choses in action where such assignments are not allowed, or to the action of courts in placing property in the hands of a receiver or to foreign bankrupt laws, and where the transfer •of the property of the debtor is involuntary. “An ■assignment by law has no legal operation out' of the •State in which the act was passed, while a voluntary assignment, it being by the owner, is a personal-right of the proprietor to dispose of his effects for honest purposes.” (Burrill on Assignments, section 303, 4th edition, and a number of cases there cited.)
In the one case the owner disposes of his. own property for a consideration that is valuable and to be commended, and in the other the foreign tribunal, without the consent of the owner, takes
The courts of this State will recognize the right, of the owner to dispose of his property by contract,, and will uphold such right although made in another jurisdiction, when not against the policy of our law, or plainly injurious to the rights of the resident creditor.
In the case of May v. Wannemacher, 111 Massachusetts, 202, it was held, in discussing a similar question, that an assignment made in Pennsylvania was entitled to preference over the attaching creditor in Massachusetts; that the assignment in no respect contravened the policy of the law as established in Massachusetts, and, therefore, was effectual to pass the rights of the debtor even to property not subject to the local laws of Pennsylvania.
In the case of Moore and others v. Willett, 35 Barbour, 663, the transfer was made in North Carolina, and the property afterwards seized under execution in the State of New York; it was held that the assignment must prevail as against the execution creditor.
In Law v. Mills, 18 Pa. State, 185, the debtors executed an assignment in the State of New York
The Supreme Court of Ohio, the State in which-, the assignment in the present case was made, in the-case of Johnson v. Sharp, 31 Ohio St., 617, held that the assignee of the debtor was entitled to the-property as against subsequent attaching creditors. The assignment in that case was executed in the-State of Missouri, and the property was in the State-of Ohio, where» the creditors also resided; still the question involving the principle upon which the recovery in this case was made to depend was in that case discussed and decided. That court, in the-opinion rendered, said: .
“The decided weight of authority in this country is that our courts will not subject our citizens to the inconvenience of seeking dividends under a foreign, assignment in bankruptcy when they have the means of satisfying their claims at home, and probably the-same may be said when the preference is sought over-any involuntary assignment of the debtor’s property made in invitum or by operation of law. But it' appears to us that a different rule should be maintained where a voluntary assignment is made in one State of the Union of property’ situate in another. *•*656 "* * The common right of every one to dispose of his property wherever he may be, and a reasonable acknowledgment of the principle of comity which .should exist between the sister States of this Union, would seem to require a different rule, and such doctrine has been recognized in several of the States.” (Johnson v. Sharp, 31 Ohio State, 619.)
. A settled rule affecting the assignment and transfer of personal estate prevailing in our sister States, • and adopted or followed in this State, can work no hardship on our citizens. The creditor here may be put to the inconvenience of presenting his claim to the assignee for payment in a different jurisdiction, but the same rule would apply to the creditor ;.in Ohio where the assignment had been made in Kentucky. The only question in this case, it seems "to us, is, would the assignment made in Ohio have keen valid and enforced in this State if made here? If so, a subsequent attaching creditor should not be ; allowed to defeat the claim of the assignee.
There is nothing in this case inconsistent with the line of policy adopted in this State upon this subject, either in the statute of assignments or the judicial decisions under it.
. All of .the debtor’s property is transferred and ■conveyed to the assignee for creditors without any preference or priority. A bond is certified to have been executed, and the assignee has qualified, and while the -contents of the bond is not made to appear, the court will presume that it is such a bond as is usually required of assignees. What • the costs of the proceeding in Ohio may be, or the
It appears from the pleadings in the case that the appellant knew of the assignment when he obtained the attachment, and as between the attaching creditor and the assignee, the creditor was properly, adjudged to pay the costs. No judgment has been ’ rendered against the debtor for the claim, but that branch of the case seems to have been continued.
The judgment below must be affirmed.'