Frоm the findings made by the court upon the trial of this action, it appears that on the 1st of November, 1873, one James Boyle was seised in fee simple of certain lands and premises known as “Nos. 22 and 24 Mangin Street,” in the city of "New York; and that on or about said 1st November, 1873, said James Boyle and Margaret, his wife, signed, sealed, and acknowledged a deed of said land and premises purporting to convey the same to one Andrew Little, the defendant. The consideration expressed in said deed was the sum of $16,000, and the assumption of mortgages upon said property, amounting to the sum of $4,900. The paper so signed, sealed, and acknowledged was caused to be recorded on said 1st of November, 1873, by said Boyle. At no time prior to the recording of said deed did the defendant authorize or sanction the placing of the same upon record; and the defendant was ignorant of the existence of the same until about the month of January or February, 1878, when the same was handed to him, and he objected to the same, and returned the same to said Boyle or his attorney, and left the same with said Boyle’s attorney, to have the same corrected or exchanged. The defendant never afterwards got said deed from said Boyle or said Boyle’s attorney. The consideration of $16,000 expressed in the deed was never paid, and thе grantee never paid or agreed to pay for said property the sum of $16,000, and never agreed to assume or pay the mortgages upon said property. From the day said paper was signed, November
Upon an examination of the foregoing facts, it seems to us that they are fatally defective, in the first place, in not finding that there was ever any execution of the deed in question by delivery to the defendant; and, in the next place, the question as to what was the intent of James Boyle in the signing, sealing, and acknowledging of the deed on the 1st of November, 1873, seems to be entirely immaterial as far as this plaintiff was concerned. He was not a creditor of Boyle at that time. It is not found that he expected to be a creditor, or that Boyle expected him to be a creditor, nor that Boyle signed, sealed, acknowledged, and delivered the deed in question with any intent of defrauding subsequent creditors. The claims upon which the judgment is obtained which is the foundation of this suit seem to have accrued in 1877, and therеfore the conveyance by Boyle in 1873 does not seem to have done much harm to this plaintiff. If it be said that Boyle remained in possession of the premises to the time of his death, and was in possession thereof at thе time of the contracting of this debt, our attention has not been called to any evidence or to any finding that any portion of this debt was contracted upon the faith or knowledge or the assumption of knowledge оf ownership in Boyle in the premises in question. It is
Further, it is found that during the year 1878, James Boyle was adjudicated a bankrupt on his own petition, and it would appear that аn assignee in bankruptcy was appointed, because it is found that the" assignee appointed in the bankruptcy proceeding died before the commencement of this action, having taken no proceeding to set aside the deed in question. Now, it is a well-settled rule of law that, upon the appointment of an assignee in bankruptcy, all the property of the bankrupt becomes vested in the assignee by virtue of the adjudicаtion of bankruptcy and the appointment of such assignee, and all property conveyed by the bankrupt in fraud of his creditors is expressly included therein. The title to the rents and profits which are claimed in this action by thе plaintiff was vested, therefore, in the assignee in bankruptcy, and, he having died, belonged to his successor, when such successor shall be appointed. Even if it be assumed that, the creditor, where an assignee refuses to bring an action for the purpose of recovering property belonging to the estate, may bring such action making the assignee a party, the fruits of such action, however, must be brought in court for the benefit of the creditors of the bankrupt, to be administered in due course of proceedings in bankruptcy. Such an action is an aid to the bankruptcy proceeding, and of the application of the property fraudulently disposed оf by the bankrupt to the payment of his creditors, generally. In such a proceeding no creditor can procure a preference by reason of the bringing of such an action. In the case at bar the plaintiff seeks to seize upon this asset, without regard to the rights conferred by the bankruptcy proceeding, and without regard to the rights of any other of the creditors of James Boyle who may be entitled to participate therein. In other words, the plaintiff seeks to have this court to administer the estate of the bankrupt, the title to which has been divested by the proceedings in bankruptcy, and not represented before the court.
It seems to us that the judgments must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.