63 F.2d 543 | 3rd Cir. | 1933
The alleged bankrupt (for eonvenienc> called the bankrupt) moved to dismiss the petition on the contention that no act of bankruptcy is sufficiently alleged. From an order of the.District Court- denying the motion on a holding that the assailed averments of acts of bankruptcy are fully informative and therefore sufficient, the bankrupt took this appeal in which he has raised two questions: One, whether the charges of acts of bankruptcy comply with the rules of pleading; the other, whether the entire petition is void because of repugnancy.
The acts of bankruptcy purported to be charged in the petition are those defined by section 3a (1, 2) of the Bankruptcy Act, 11 USCA § 21 (a) (1, 2), committed by a person “having (1) conveyed * * * any part of his property with intent to hinder, delay, or defraud his creditors,” and having “(2) transferred, while insolvent, any portion of his property to * * * creditors * * * with intent to prefer such creditors over his other creditors. * * *"
To avoid lengthy quotations from the petition it will be enough to say there are three averments which allege three separate transfers of property by the bankrupt involving five acts of bankruptcy, preceded by a general declaration of their occurrence within four months of the petition and while the bankrupt was insolvent. All averments of acts of bankruptcy are clearly sufficient as to property conveyed, dates of deeds, and names-of grantees. The trouble lies in the allegations of intent — a controlling element in these acts of bankruptcy — -which, with reference to the first act are stated in the disjunctive — a transfer with intent to defraud creditors or with intent to prefer a creditor — and with reference to the second and third acts are stated in the conjunctive —other transfers with intent to defraud creditors and with intent to prefer a creditor. Finally, the fourth -averment charges that all of the named transfers were made without consideration with intent to defraud creditors. Is this bad pleading — so bad as to be fatal to the whole petition?
The first averment of an' act of bankruptcy stated in the disjunctive — a transfer with intent to defraud or with intent to prefer — is, we think, bad for the reason that it leaves the bankrupt in doubt as to which, act he is required to meet, particularly, whether he is required to meet the issue of insolvency under the alleged act to prefer. These two averments of intent are not inconsistent in the sense of destroying each other but when pleaded together in the disjunctive they give the petitioners an advantage which the law does not accord them and leave the bankrupt at a disadvantage against which the law of good pleading protects him.
Of course we find no repugnancy between the two good paragraphs averring acts of bankruptcy in the conjunctive on the one hand and the had paragraph averring acts of bankruptcy in the disjunctive on the other hand, or between the two good paragraphs themselves, because each refers to a transfer of different properties, and therefore as no paragraph is opposed to another, no one of them can destroy another and, in ‘consequence, there is no legal inconsistency between them. Petitioners may charge as many acts of bankruptcy as the statute prescribes and as they can prove.
While we do not commend pleading two acts of bankruptcy in one paragraph, we agree with the learned trial judge that in this case it sufficiently and with certainty informs the bankrupt of what he is required to meet and thus performs the function for which a pleading is intended.
The order below is affirmed.