30 Ill. App. 210 | Ill. App. Ct. | 1889
April 30, 1886, James P. Sayer made an assignment for the benefit of his creditors to the appellant, which was acknowledged and recorded on the same day, pursuant to the act concerning voluntary assignments of May 22, 1877. This record does not show that the appellant entered upon the discharge of the duties of his position in the manner directed by the statute, but as no question is made in the case upon that subject, it is to be assumed that he did.
May 28, 1886, appellant filed in the County Court a petition, which, with a subsequent amendment, charged that the assignor, two days before the assignment, and in contemplation of it, and as an unlawful preference to the appellee Elizabeth, conveyed to her real property in Minnesota and Dakota, and dioses in action, in consideration of pretended indebtedness from him to her.
The petition prayed that the transfers might be declared fraudulent and preferential, and might be vacated and set aside, and that she might be decreed to deliver the dioses in action to the appellant, and convey to him the real estate.
Some further proceedings, which it is unnecessary to state in detail, were had in the County Court, and January 31, 1887, that court entered the decree prayed for by the petition, to be enforced by attachment for contempt of court, in case of her failure to obey the decree. This decree the Circuit Court reversed.
To the relief prayed for by that petition, the appellant was not entitled in any court, and of the subject-matter of the petition the County Court has no jurisdiction.
The act in question deals only with assignments made by debtors to their assignees. The word “assignment” occurs many times in the act, and always, either by connection with inventory annexed, acknowledgment and record, by assignee named in it, or by natural construction, refers to the paper by which the debtor has conveyed to his assignee the assets assigned. By the fourteenth section full jurisdiction is conferred ujion the County Court to carry out the provisions of the act. The County Court is not, in the usual'sense, a court of general jurisdiction. It is a court of multifarious but defined jurisdiction, general and unlimited over the class of cases confided to it, and in such eases intendments in favor of its action are as liberal as are extended to the proceedings of the Circuit Court, and it is not necessary that all the facts and circumstances which justify its action shall affirmatively appear upon the face of its proceedings. People v. Gray, 72 Ill. 343, and cases there cited.
But no such intendment enlarges the class of cases over which it has jurisdiction. The jurisdiction of the County Court does not resemble that of the Circuit Court, which is original “ of all cases in law and equity” (Sec. 12, Art. 6, Const.), undefined, general, like space, ending nowhere, and embracing all that is. The act in question, by the eleventh section, gives the assignee the same power as to all property of the debtor that the debtor had at the time of the assignment, and the right to sue in his own name and to recover such property, and the eighth section enables the County Court to compel the debtor to deliver to the assignee all property embraced in the assignment. But there is nothing in the act which enables the assignee to sue in the County Court in any case of which it has not jurisdiction by general law, nor any authority conferred upon the County Court to call before it anybody but the debtor and the assignee. The maxim, “ expi'essio unius est exolusio alterius applies to the construction of statutes as well as contracts. Madison Co. v. Bruner, 13 Ill. App. 599; Broom’s Leg. Max. 664.
The argument, in effect, of the appellant, is that the property embraced in unlawful preferences is to be read into the “assignment,” which word as used in the statute is to be understood as covering the whole transaction of the disposition the debtor makes of his property, and that, therefore, the assignee has the title to the property, and may pursue it wherever found, in any mode appropriate to an owner deprived of his right; and that the property embraced in an unlawful preference being read into the “ assignment” is in some way covered by the provisions of the act, to carry out which provisions the County Court has jurisdiction. In Bouton v. Dement, 123 Ill. 142, the Supreme Court deny (as by proper construction the eleventh section of the act denies) the authority of an assignee to undo anything his assignor had done, apply the same rule which exists in regard to an administrator, and hold that the statute respecting assignments makes no change in the rule. It is true they were not then dealing with a question of unlawful preference, but of prior fraudulent conveyance.
In every case, however, in which they have had occasion to assert the jurisdiction of the County Court, the property was in the hands of the assignee. Freydendall v. Baldwin, 103 Ill. 325; Hanchett v. Waterbury, 115 Ill. 220; Field v. Ridgely, 116 Ill. 424; Farwell v. Crandall, 120 Ill. 70; Handford O. Co. v. First N. Bk., 126 Ill. 584; Hide & L. N. Bk. v. Rehm, 126 Ill. 461.
And usually in such assertions, they have referred to that fact as to one of those upon which the jurisdiction attached; while in Preston v. Spaulding, 20 Ill. 208, where the property had not come to the possession of the assignee, they hold that in "that particular it did not at all resemble the first two in the list of cases above cited; that the County Court had not acquired jurisdiction of the res; that that court is not by the act invested with general chancery powers and jurisdiction, but that in respect of matters of a purely equitable character, specially cognizable in the courts of equity, resort must still be had to the courts of general chancery jurisdiction.
In that case, which was before Bouton v. Dement, 123 Ill. 142, it was assumed by counsel, and not denied by the court, that the assignee might maintain a bill to bring into his possession assets held under an unlawful preference, though in terms the court only re-asserts his right to sue for everything “belonging or appertaining” to the estate of his assignor, quoting from the eleventh section of the act. That case is, therefore, no authority for the appellant, except upon the doctrine there first established in this State, “ that, after a debtor has made up his mind to make an assignment of his property for the benefit of his creditors, all conveyances, transfers and other dispositions of his property or assets, made in view of his intended general assignment, whereby a preference is given, will be held to be within the prohibition of the statute and void, the same as though incorporated in the deed of assignment itself.” Bailey, J., in Hide & L. N. Bk. v. Rehm, 126 Ill. 461.
The remedy belongs to the defrauded creditors, and the forum is the Circuit Court or other court having general chancery powers. The decree of the Circuit Court is affirmed in principle, but the form of it is wrong. The trial in the Circuit was de novo (Sec. 122, Act March 26, 1874), and the Circuit Court should have entered its own final judgment in favor of the appellee, dismissing the petition for want of jurisdiction in the County Court.
The eases Otten v. Lehr, 68 Ill. 64, and Higgins v. The People, 69 Ill. 11, were under the act of 1872, which was repealed by that of 1874.
The decree of the Circuit Court is reversed and the cause remanded to the Circuit Court, with directions to dismiss the petition for want of jurisdiction in the County Court. The appellees will recover their costs in this court, as this reversal is in a matter of form only, in which the appellant has no interest.
jReversed and remanded.
