May v. Wannemacher

| Mass. | Nov 15, 1872

Wells, J.

The St. of 1836, c. 238, having been repealed, this case is not affected by any considerations arising from that statute, or from the general policy of the insolvent laws of Massachusetts. National Mechanics' & Traders' Bank v. Eagle Sugar Refinery, 109 Mass. 38" court="Mass." date_filed="1871-11-15" href="https://app.midpage.ai/document/national-mechanics--traders-bank-v-eagle-sugar-refinery-6416722?utm_source=webapp" opinion_id="6416722">109 Mass. 38.

Independently of those laws, it has always been held that voluntary assignments by a debtor, in trust for the payment of debts, and without other1 adequate consideration, are invalid as against attachment, except so far as assented to by the creditors for whose benefit they were made. If assented to by creditors, such assignments are good at common law, and will protect the property or fund from attachment to the extent of the amount due to creditors thus assenting; unless, by the conditions of the assignment, it is made to take effect only upon the assent of all, or a prescribed number of creditors.

The assent of creditors will not be presumed on the ground that it is apparently for their interest; but must be shown by some form of adoption or affirmative acquiescence. Bussell v. Woodward, 10 Pick. 408, 413.

In cases of assignment by a tripartite instrument, it is generally necessary that creditors should execute the instrument in order to give it full effect, because such is the intent with which it is made. But when this is not required by the form of the instrument of assignment, it is only necessary that creditors should give such assent to its provisions as will recognize and affirm the acceptance and possession of the property by the assignee, as made and held for their benefit and in their behalf, in accordance with the terms of the assignment. Russell v. Woodward, 10 Pick. 408. Everett v. Walcott, 15 Pick. 94.

If creditors present their claims to the trustees for allowance for the purpose of a distribution, in accordance with the terms of the assignment, they thereby assent to the trust; and the trustee thereafter holding the property in their behalf holds it upon a legal consideration, and his title is perfected. The effect is the same if they present their claims to commissioners or other persons appointed for that purpose, in accordance with the terms of the assignment. And it can make no difference, in this particular, if those persons are appointed under provisions of local public law, with reference to which the instrument of assignment was made.

The foregoing propositions meet and cover the present case. The assignment was made with reference to the laws of Pennsylvania. It is agreed that, by those laws, such an assignment is recognized as valid; and the proof and allowance of claims, and the distribution, are conducted as judicial proceedings. Creditors, to an amount largely exceeding the total assets, have presented and proved their claims and accepted dividends upon them, thereby signifying their adoption of the assignment for their benefit.

The question is made how far the courts of this Commonwealth are bound to recognize assignments of this kind, made in a foreign jurisdiction, when set up against our own citizens claiming to hold, by attachment, property of the insolvent debtor found within this jurisdiction.

Such assignments made by commissioners of bankruptcy, or by judicial or legislative authority merely, without the act and assent of the debtor, are not held as binding upon the courts of another state. Taylor v. Columbian Ins. Co. 14 Allen, 353.

An assignment made by the .debtor himself in another state, which, if made here, would be set aside for want of consideration or delivery, or as fraudulent, or contravening the policy of the law of this Commonwealth, will not be sustained here against an attachment, although valid in the state or country where made. Zipcey v. Thompson, 1 Gray, 243. Fall River Iron Works Co. v. Croade, 15 Pick. 11. Ingraham v. Geyer, 13 Mass. 146" court="Mass." date_filed="1816-03-15" href="https://app.midpage.ai/document/ingraham-v-geyer-6404431?utm_source=webapp" opinion_id="6404431">13 Mass. 146. Osborn v. Adams, 18 Pick. 245.

In each case above mentioned, to sustain the assignment would be to give force and effect here to the foreign law, which has none suo vigore. That is a matter of comity, and not of right. But in each case the assignment is always sustained so far as it affects property which was at the time within the jurisdiction where it was made ; Benedict v. Parmenter, 13 Gray, 88; Wales v. Alden, 22 Pick. 245 ; and also as against all citizens of that jurisdiction, even when seeking a remedy here against property found here. Rhode Island Central Bank v. Danforth, 14 Gray, 123. Martin v. Potter, 11 Gray, 37. Richardson v. Forepaugh, 7 Gray, 546. Whipple v. Thayer, 16 Pick. 25. Daniels v. Willard, Ib. 36.

This assignment is made by the debtors themselves. No fraud is shown or suggested. It in no respect contravenes the policy of law as established in this Commonwealth. It is assented to by creditors sufficiently to give it a valid consideration and full legal effect, if it had been made here. The effect of that assent does not depend at all upon the judicial proceedings in Pennsylvania. Giving no force whatever to the judicial authority of those proceedings, or to the local law, we find in the acts of the parties sufficient to constitute a legal and valid assignment, which should be held to be good wherever made, and effectual to pass the rights of the debtors even to property not subject to the local laws of Pennsylvania. Means v. Hapgood, 19 Pick. 105. Newman v Bagley, 16 Pick. 570. The judgment therefore must be

Trustee discharged.v