39 Conn. 37 | Conn. | 1872
The plaintiffs were creditors of one Walters, who in February, 1868, being insolvent, made a fraudulent transfer of goods to the defendant. The object of the transfer was to conceal the goods from attachment, of which object the defendant was fully aware. He participated in, and himself suggested, the arrangement.
In March, 1871, and after the defendant had sold the goods, the plaintiffs brought suit for the recovery of their debt, factorizing the defendant. The value of the goods fraudulently transferred was $206.78. The plaintiffs recovered judgment against Walters for $267.15. The present proceeding is scire facias against the defendant founded upon the factorizing process.
This was so decided in Starr v. Tracy, 2 Root, 528, and the court there say that if different creditors proceed, the one by factorizing process, and the other by ordinary process of attaching the goods, the party first in time will be first in right. The principle upon which in such cases the creditor may have redress by garnishment, is that the transfer, being fraudulent, is as against a creditor void; and although the title may pass to the fraudulent grantee as between the parties, yet, as against a creditor, the grantee may be treated as mere trustee and bailee of the goods.
But in the case under consideration the goods had been sold by the defendant before he was factorized, and the defendant’s counsel make the point that the proceeds of the sale are not liable to be taken by this process. But it is difficult to see any sound distinction between the goods themselves and the proceeds of their sale. If the transfer of the goods may be treated by a creditor as void, and the ■"transferee treated as having in his hands the goods of the debtor, then, following out the rule, the proceeds of the sale of the goods are, as against a creditor, the debtor’s monies in the defendant’s hands. '
Another question arises in the case concerning which we have felt some considerable doubt. Upon the delivery of the goods, or immediately thereafter, the defendant paid Walters 1100 toward their value; and it was also then agreed that a book account of $47.50 due from Walters to the defendant should he considered settled and paid by the receipt of the goods. The defendant’s counsel earnestly contend that the defendant should have the benefit of this payment and of this book account. The argument is that by the factorizing process
The defendant withdrew the goods from Walters’ creditors. Had it not been for the wrongful acts of the defendant all the goods could have been, and probably would have been, attached by the plaintiffs. By our decision therefore we merely give the plaintiffs a compensation commensurate with the injury they have suffered at the hands of the defendant.
The rulings of the Court of Common Pleas were in accordance with these views, and we advise no new trial.