Foster v. Mix

20 Conn. 395 | Conn. | 1850

Waite, J.

The jury in this case have found, that the debt due from Elihu Cooper to Cooper & Rockwell, was assigned to Townsend, and notice thereof given to Tuttle, one of the defendants, before the service of the writ of foreign attachment in favour of James T. Mix, was made upon the defendants. The question therefore, is, whether such notice, given to one of two trustees, but not to the other, will be sufficient to protect the property in the hands of the trustees, against subsequent attachments, by the creditors of the insolvent debtor.

To make such an assignment effectual, as against such creditors, it was necessary that it should not only be made, but that notice thereof should be given to the defendants, before the attachment, or within a reasonable time after the execution of the assignment. Bishop v. Holcomb, 10 Conn. R. 444.

The statute regulating assignments made by insolvent debtors, for the benefit of creditors, places trustees very nearly in the same situation, as executors and administrators of insolvent estates of deceased persons. It requires very nearly the same proceedings before the court of probate, in the one case as in the other. And the powers and duties imposed upon trustees, are, in most respects, the same as those conferred upon executors and administrators.

Where there are several executors of the same will, they are considered in law as an individual person. The acts of one regarding the administration of the estate, are deemed the acts of all. Proof that assets are in the hands of one of them, will support an allegation that they are in the possession of all. One may sell and dispose of the personal property, and collect and discharge the debts due to the estate. Knapp v. Hanford, 7 Conn. R. 132. Beecher v. Buckingham, 18 Conn. R. 110. Hammon v. Huntley, 4 Cowen, 493.

From these acknowledged principles, it would seem to follow, that whenever the law requires notice to be given to executors, it will be sufficient to give that notice to any one of them. The presentation of a claim against the estate of the testator, to one of them, will be as effectual, as if made to each and all of them, and will prevent the operation of the statute of limitations, which bars a suit for the recovery of a debt, unless the claim is presented to the legal representatives, within a limited time. Such, it is believed, is the practical construction given to the statute. And, in our opinion, the same rule applies to notices to joint trustees of the estate of an insolvent debtor.

And this is in conformity with the doctrine recognized in the English court of chancery. Maberly, being indebted to Smith, assigned to him, by way of security, his life interest in certain funds under his marriage settlement, and afterwards became a bankrupt. The assignee having mentioned his security to one of the trustees, before the bankruptcy occurred, the question was, whether after such notice, the fund, at the time of the bankruptcy, was in the power and disposition of the bankrupt. Lord Lyndhurst, in delivering the judgment of the court, observed : “ It was argued that notice to one only of three trustees was insufficient-that it should have been given to each of them ; and that this not being done, the property remained in the order and disposition of the bankrupt, up to the time of the bankruptcy; but we are of opinion, that notice to one of the three trustees, was sufficient. No valid assignment could have been made, by the bankrupt, after the notice to the trustee : a second assignee, in order to have obtained a priority over the first, must have shown, that he had exercised proper precaution in taking the assignment; that he had applied to the trustees to know if any previous assignment had been made ; and if he had applied to each of them, he would have been informed, by one, of the previous assignment to Smith, and he must then have taken the property, if at all, subject to the claim of Smith.” Lewin on Trustees, 506.-citing Smith v. Smith, 2 Cr. & Mees. 231.

This case arose under the English bankrupt laws ; but the reasoning of the chancellor shows, that the principle applies equally to the claims of subsequent assignees. And by our law, the same diligence is required of a subsequent attaching creditor, as is required of a subsequent purchaser.

Upon the authority of this case, James T. Mix, the attaching creditor, by his attachment, acquired no lien upon the property as against the assignment made to Townsend. For if he had enquired of Tuttle, he might have been informed of that assignment.

It is however said, that the present suit is upon the separate bond of Mix, and that he ought not to be affected, by any notice which was never communicated to him. But it was his duty, before he paid over the dividend in his hands, to the attaching creditor, to make enquiry, and ascertain whether that creditor was legally entitled to it; or whether it belonged to some other person. Had he consulted his co-trustee, the necessary information might have been obtained.

If the suit had been brought upon the separate bond of Tuttle, he would have had much more cause for complaint, as he has done no wrong, unless his omission to inform his co-trustee of the notice which had been given to him, may be considered such. The fault is in Mix, in paying the dividend to a person not legally entitled to it, and in withholding it from the rightful owner.

We are, therefore, of opinion, that the plaintiff is entitled to judgment upon the verdict: and so we advise the superior court.

In this opinion the other Judges concurred.

Judgment for plaintiff.