61 N.J. Eq. 391 | New York Court of Chancery | 1901
The important question arises under the third point taken in the demurrer:
Has a receiver, appointed to take charge of the property of a partnership which is insolvent, a right to file a bill in respect of the property which belonged to a member of the firm and which has been assigned by him to defraud the creditors of the firm ?
The question is not whether such a receiver can file a bill to reclaim firm property which has been fraudulently assigned or conveyed by one of the members of the firm.
There is no doubt that an assignee for the benefit of creditors, or the receiver of an insolvent corporation, can file a bill to
It is to be observed that the right of the receiver to file this bill to cancel these conveyances of the property of the partner implies a right in the receiver to take possession of the property when recovered, and the same right if it had never been conveyed. It implies that every receiver of the property of a firm, by force of his appointment, becomes a curator of all the property of each partner. Such a view has never received countenance in any case, and is opposed to any sensible theory of the receiver’s functions. In the well-considered case of Wallace, Receiver, v. Milligan, Assignee, 110 Ind. 498, it was held that the right of a receiver of a partnership to take possession of property is confined to the firm assets, and that the individual liability of a partner to the creditors of the firm is not a firm asset, and cannot be enforced by the firm’s receiver.
It is perceived that it is only upon an assumed right- of a
There must be a decree for the demurrant.