3 F. 892 | S.D.N.Y. | 1880
In this case a rehearing has been granted upon the question of the discharge of the bankrupt Kraft, upon the suggestion that the court and counsel had entirely overlooked one point in the case, which might be decisive in his favor. The discharge vías refused on the ground that the bankrupt had made a general assignment for the benefit of creditors about two years and seven months before he filed his petition. The point now made is that the opposing creditors received dividends under the voluntary assignment, and have thereby affirmed its validity, and are estopped to set it up as a fraudulent conveyance to prevent a discharge. There is some evidence upon which it is claimed that one of the two opposing creditors virtually assented to the assignment at or before the time it was executed. This was held not sufficient as showing thoir assent to it. The case cited upon this rehearing, and hereinafter referred to, might lead to a reconsideration of this question if it could affect the result. But as it is conceded that no such assent, otherwise than by the acceptance of a dividend, is shown against the other opposing creditor, it is unnecessary to consider further the effect of that evidence. The dividend was paid to the opposing creditors about 15 months after the execution of the assignment. Is this such a ratification of the assignment as precludes the creditor from opposing the discharge of the assignor in a subsequent bankruptcy, on the ground of his making the general assignment ? Several cases are cited in
This, it seems to me, is the utmost extent to which the estoppel goes. If the creditor could make the assignment the ground for putting the debtor into bankruptcy, as he could down to the amendment of the bankrupt law in 1874, upon his petition alone, or as he can do under the English bankrupt law, then the failure to take this course .may well be deemed an assent to what the debtor has doiie; Having power to undo the act, he lets it pass and is deemed to
The dictum in Mayer v. Hellman, 91 U. S. 496, 501, to the effect that creditors are deemed to have acquiesced in preferential or fraudulent transfers made before the limited period prior to the bankruptcy, which is prescribed as the limit of time within which they must be made to be set aside, has relation only to the recovery of such property by action, and has no bearing offlrthis' question, which arises under the ninth subdivision ofosection- 5110 of the Bevised Statutes. That subdivision of the.section imposes no limit of time within which
I think there w'as no error in the former decision refusing the discharge.