7 Mo. App. 236 | Mo. Ct. App. | 1879
delivered the opinion of the court.
On April 20, 1874, Poppin & Co., being embarrassed, owed the plaintiff $2,543, represented by a note then overdue. The plaintiff extended the note for six months, in consideration that Poppin & Co. would secure him by a mortgage upon a portion of their stock in trade. This
The instructions given and refused are very numerous and lengthy. It is unnecessary to refer to them further than to say, that, from the action of the court in giving and refusing instructions and in the admission and exclusion of evidence, it appears that the case was tried, against the plaintiff’s objections, on the erroneous theory that an assignee under a voluntary assignment for the benefit of creditors, under our statute, stands as the representative of the creditors, in such a sense that he can attack the conveyances of his assignor on the ground of fraud; and that it lay, therefore, in the mouth of Woods, in the present case,
It is taken for granted by this court in Schultz v. Christman, 6 Mo. App. 338, that by an assignment no right ¡lasses to the assignee to annul a sale as being in fraud of creditors ; that the assignee does not represent the creditors, and cannot object on their behalf; and that if the conveyance is good except as to them, the assignee, under our statute, cannot dispute, it. In this the court followed the rulings in other States as well as the doctrine of our own Supreme Court. In The State to use v. Rowse, 49 Mo. 593, Judge Bliss refers to Gates v. Labeaume, 19 Mo. 17, and says that it is an erroneous interpretation of that case to hold that the spirit of that decision is to treat an assignee as a bona fide purchaser for a valuable consideration; that the Missouri doctrine in this respect does not differ from that of the other States ; and that the assignee stands in the shoes of the assignor as to equities that were good as against the assignor.
Counsel for the respondent contends that such a doctrine leaves the victims of a conveyance void as to creditors without a remedy; because, he says, if the assignee cannot attack such an instrument it is unimpeachable, because where an assignment has been made, the creditors are bound by it. That a subsequent judgment or lien creditor cannot attack the assignment, unless on the ground of fraud, and that a fair and valid assignment passes the legal title to the assignee without any assent of creditors, is true
The judgment is reversed and the cause remanded.