99 Tenn. 713 | Tenn. | 1897
The complainants are creditors of Kinzell & ’Co., who, in June, 1896, undertook to make a general assignment which was confessedly fraudulent in law, and the bill in this cause sought to impeach this instrument, and by attachment to
The question is, do the foregoing facts work an estoppel on such complainants as were represented in these negotiations by these solicitors to impeach this assignment, though • fraudulent in law as to all creditors of the assignors ? It will be observed that no benefit accrued to these complainants as the result of these negotiations between their solicitors and the assignee. Noi'' was the trust estate or the assignee placed at disadvantage by them. If estopped at all, it is upon the bare ground that without any change of attitude upon the part either of complainants or
That a fraudulent transfer may be ratified by a creditor so as to preclude him from attacking it, is well settled, but we have not had our attention called to any case where this result has followed from facts so meager as these. Where a benefit has been received by the creditor from the fraudulent transfer, or where the assignee, by reason of the assailing creditor’s conduct or agreement in recognition of it, has been put at disadvantage, or where such creditor enters into an arrangement with the other creditors of the fraudulent grantor looking to a disposition of the assigned property and distribution of its proceeds among all (Bump on Fr. Conveyances (3d Ed.), Secs. 456, 457), or where he takes legal steps to enforce the assignment, or where he does anything else unequivocal and decisive in character (O' Bryan Bros. v. Glenn Bros., 91 Tenn., 106), he would be held to have estopped himself from attack upon it. But, as was said by the Supreme Court of New York, in Groves v. Rice, 148 N. Y., 227, ‘ ‘ in order that a creditor shall be es-topped by an act of his from impeaching the validity of an assignment, it must appear that he has accepted an actual benefit under it, or that he has
In the first four of these last cited cases the creditor was held estopped because he had obtained benefits from the transfer, afterwards assailed by him; in the last (Rappallee v. Stewart, supra) the contesting creditor had entered into an agreement with the other creditors, showing an assent to and ratification of -the assignment, by which the parties to it consented and agreed that certain other persons, one of them being the assignor debtor, should be joined n the disposition of the property assigned. It is apparent that these cases fall short of being authority for the contention that is' made in the present case. Nor is it sustained by Swanson v. Tarkington, 7 Heis., 612, and August v. Seeskind, 6 Cold., 166, cited for that purpose. The first of these cases simply held that in claiming under a trust assignment a creditor affirmed it in toto, while the second only announced the well-settled rule that in the absence of a reformation of an assignment which, by the inadvertence of the draftsman,' contained a clause making it fraudulent in law, creditors claiming under ifr are held to the terms as written in it, and that
On the whole case, we think neither on principle nor on authority ought the complainants to be repelled, and that the Court of Chancery Appeals was in error in holding that they were. So much of the decree of that Court as holds that certain of these complainants were estopped is reversed, and a decree will be entered here in favor of all the complainants.