Haskell v. Merrill, 179 Mass. 120

Haskell v. Merrill

179 Mass. 120 | Mass. | 1901

Holmes, C. J.

This is a bill by a trustee in bankruptcy to recover property alleged to belong to the bankrupt’s estate. The case was sent to a master, and exceptions were taken by the defendant Hodge to his report. These were overruled, and no appeal was taken. Afterwards the report was accepted and a decree was entered for the plaintiff. From this final decree an appeal was taken. The only question before us is whether the decree was warranted on the pleadings and report.

Both sides have argued the exceptions as if they were open, and therefore we think it proper to say that we see nothing in them. The objection to the jurisdiction in equity that there was an adequate remedy at law, comes too late. Jones v. Keen, 115 Mass. 170. Crocker v. Dillon, 133 Mass. 91. Parker v. Nickerson, 137 Mass. 487. Whiting v. Burkhardt, 178 Mass. 535. That of multifariousness is not argued. So far as objections are based on evidence it is enough to say that the master was not ordered by the court or asked by the parties to report it. Nichols v. Ela, 124 Mass. 333, 335. Freeland v. Wright, 154 Mass. 492. The objection to findings that express in a single word, such as “ loan,” “ security,” “ delivery,” a conclusion of law from facts, on the ground that the constituents should have been stated, would interdict an important part of the English language. The function of such words often has been analyzed. Windram v. French, 151 Mass. 547, 551. Commonwealth v. Clancy, 154 Mass. 128, 132. Alton v. First National Bank of Webster, 157 Mass. 341, 343. Evans, Pleading, (1st ed.) 48,139,143-146,164. By stating the conclusion they allege by implication that facts exist which justify it. If for any reason it is material to go further, rulings can be asked which will separate the pure facts. Formerly the plaintiff’s allegation of title was analyzed when necessary by giving color in pleading. Evans, Pleading, 149-157. An exception to an alleged exclusion of evidence is not argued. It does not appear even that any such evidence was offered.

The only property concerned under the master’s report is machinery found to have been transferred by a bill of sale to the defendant Hodge as security for advances. The instrument seems not to have been recorded, and the master finds in terms *124that there never was any delivery of possession. An exception taken to this finding is less frivolous than the others, since earlier in the report it is stated that after giving the security the bankrupt paid monthly rent for the use of it. We assume for the purposes of decision that the form of such a payment would have been evidence of a sufficient change of possession, Moors v. Wyman, 146 Mass, 69, 68, and there may be some ground for apprehending that the master adopted a different view. But we cannot say that the fact that the form of paying rent was gone through conclusively establishes the change. Harlow v. Hall, 132 Mass. 232. It should be mentioned, too, that a part of the machinery at least seems not to be the same as that covered by the mortgage.

Coming, then, to the question whether the report justifies the decree, it follows that Hodge has no title as against the plaintiff. St. 1883, c. 73. Chick v. Nute, 176 Mass. 57. Bingham v. Jordan, 1 Allen, 373. It is true that under the last bankrupt act it looked a little as if property situated like this might be at a loss for a master. For while this court denied it to the mortgagee the United States courts denied it to the assignee in bankruptcy. Winsor v. McLellan, 2 Story, 492. Ex parte Dalby, 1 Lowell, 431. Coggeshall v. Potter, Holmes, 75. Stewart v. Platt, 101 U. S. 731, 738, 739. The ground of the United States decisions was that the assignee is the bankrupt. Lowell, Bankruptcy, § 309. And no doubt it is traditional to regard such assignees as universal successors who like executors or other universai successors represent the person of him to whom they sueceed. Chipman v. Manufacturers’ National Bank, 156 Mass. 147,149. Phosphate Sewage Co. v. Molleson, 5 Ct. of Sess. Cas. (4th Ser.) 1125, 1138. Nevertheless in Bingham v. Jordan the statute was held to invalidate the mortgage as against assignees in insolvency; and this amounted to a decision that a fictitious identity of person did not satisfy the words of our statute which make the mortgage void “ against any person other than the parties thereto.” The view taken by Judge Lowell was almost directly contradictory to this decision, which was that an assignee in insolvency was not a “ party thereto.”

The construction of a State statute is a matter upon which the decision of the State court is final. If the only ground on which the right of the assignee to property subject to an unrecorded *125mortgage is that given by Judge Lowell, in Lowell, Bankruptcy, § 309,. the answer is that the United States courts are not at lib-to say that an assignee is a party to a mortgage given by liis bankrupt when this court has said that he is not. But it seems to be unnecessary to discuss that question, because in Ex parte Dalby, 1 Lowell, 431, 433, it is admitted that there is a distinction when the assignee takes all that could have been taken on execution against the bankrupt at the time of the bankruptcy. Under the present statute the trustee takes “property which prior to the filing of the petition he [the bankrupt] could by any means have transferred or which might have been levied upon and sold under judicial process against him.” U. S. St. 1898, c. 541, § 70. It is very plain that the machinery is such property. Bingham v. Jordan, 1 Allen, 373, Smith v. Howard, 173 Mass. 88, and therefore it passes to the plaintiff.

Decree affirmed.