66 F. 843 | 8th Cir. | 1895
after stating the facts as above, delivered the opinion of the court.
Has the act of congress of May 2, 1890, which put in force in the Indian Territory the statute of frauds, a retrospective effect? This is the crucial question in this case. On November 18, 1889, when the conveyance in question from McClellan to his wife was made, there was no statute relative to fraudulent conveyances corresponding to 13 Eliz. c. 5, in force in the Indian Territory. By the act of May 2, 1890 (26 Stat. 94, c. 182, § 31, 1 Supp. Rev. St. 733), congress provided “that certain general laws of the state of Arkansas * * * are hereby extended over and put in force in the Indian Territory.” One of these general laws was the provision of section 3374, c. 68, Mansf. Dig., that “every conveyance 'or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, or things in action * * * made or contrived with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures,
It is under these provisions of this act of congress that the bill in this case was filed and the decree was rendered. On May 2, 1890, then, for the first time in the Indian Territory, the law declares that a voluntary conveyance by a debtor to delay or defraud, his creditors “shall be void.” In the absence of such a statute, it was perfectly competent for an insolvent debtor to give Ms property to his wife or to his friend, and thus to deprive his creditors of an opportunity to enforce the collection of (heir claims from any of his property upon which they had fastened no liens. The debtor’s right of disposition was unrestricted in this respect, and it was undoubtedly the frauds that this condition of the law permitted that originally induced the enactment of the statute of 13 Eliz. in England, and the adoption of the provisions of that statute in the various states of this nation. The conveyance of these improvements by McClellan to his wife, then, five months before this statute was put in force in the Indian Territory, was valid when it was made, and it conveyed to his wife all the title to them that McClellan had. Did the subsequent enactment of this statute relroact upon this prior conveyance, divest the title Rachel McClellan had lawfully acquired, and subject these improvements to the same liability, to he applied to the payment of the judgment against her husband to which they would have been subject if the decid to her had never been made? The maintenance of the decree in this case requires an affirmative answer to this question, for that decree rests upon this statute of Arkansas, put in force in the Indian Territory by this act of congress. To sustain it we must hold that the passage and approval of the act of congress made a valid title to improvements worth thousands of dollars voidable without notice to, or hearing from, their owner, and in effect transferred the right to them in an instant of time; from one individual to others by the mere fiat of the legislative department of the government. The unconstitutionality of a law that would have such an effect and the manifest injustice of such a result forbid any such interpretation of this act of congress. The language of the act itself likewise forbids it. The act provides that the laws of Arkansas there specified “are hereby extended over and put: in force in the Indian Territory,” and the language of the Arkansas statute is that every fraudulent conveyance “shall be void.” The words of the act of congress and of the statute relate to the present and the future, not to.the past, and there
The result is that section 31 of the act of congress of May 2, 1890, which puts the statute of frauds of the state of Arkansas in force in the Indian Territory, had no retrospective effect, and did not avoid or affect the conveyances made before its enactment. This conclusion necessitates a reversal of the decree, a dismissal of the bill, so far as it relates to the McClellan place, and a decree that the possession of that place, and of all the rents, issues, and profits of it, that have been obtained by the receiver in this suit, with lawful interest thereon, be returned to the appellant Rachel McClellan, because the deed to her was not affected by the subsequent act of May 2, 1890, and the decree, so far as it subjects the McClellan place to the payment of the judgment óf the appel-lees, rests entirely upon the erroneous assumption that that act avoided the conveyance in question.
The claim of the appellees to subject the improvements upon the Prather place to the payment of their judgment, however, rests upon two grounds: First, that the conveyance to Mrs. McClellan-became voidable by virtue of the act of May 2, 1890; and, second, that McClellan purchased these improvements with cattle which he held as their trustee, and that Mrs. McClellan took these improvements charged with that trust. We have already held that their claim to this property cannot be maintained upon the first ground. Can it be sustained upon the second? The 100 cattle with which McClellan bought the improvements upon the Prather place were mortgaged to the appellees to secure the very debt now evidenced by their judgment. McClellan held those cattle under that mortgage, as their trustee, to secure their debt, and to apply the proceeds of the cattle, when sold, to its payment. He bought the improvements on the Prather place with these cattle without the consent of .his cestuis que trustent. These improvements were the proceeds of the sale of the cattle, and, at the option of the mortgagees, they stood charged with the same trust as did the cattle themselves. The transfer to Mrs. McClellan was a conveyance of trust property by a trustee, without consideration, and this conveyance left the improvements charged, in her hands, with the same trust to which they were subject in the possession of her husband.
' Where a trustee violates or abuses his trust, the cestui que trust has the option to follow the trust property, or that which is substituted for it, and he may subject the latter, in the "hands of a
