28 Vt. 150 | Vt. | 1855
The opinion of the court was delivered by
In regard to the construction which is to be put upon the case, there seems to he some difference of opinion
In this view of the case, it seems to us all the assignments must be regarded as void or inoperative, under the statute of 1843. We should not find any difficulty in adopting the view of' the court, in Ingraham v. Wheeler, 6 Conn. 277, and thus conclude that the latter assignment, C and D, which is evidently but one transaction, is not vitiated by-tho former assignments, A and B, which were never rescinded or formally surrendered. These instruments, which, in the language of the statute, were void as to creditors of the assignor, by reason of being general, and one of them also by reason of a resulting trust before providing for all the creditors, probably were not affected with any taint or vice which rendered them incurable. They were, in a more strict sense, imperfect, or defective; and were, on that account, voidable by the creditors of the assignor, as is said in Edwards v. Mitchel, 1 Gray 239, by Shaw, Ch. J., “ such conveyance is not absolutely void, but voidable only by creditors.” And although mu' statute of 1843 uses the term “ void as to creditors,” it is obvious nothing more is intended, than inoperative, or voidable. It is more like the statute of frauds, by which certain contracts are made of no obligation unless in writing. They are‘only defective in this particular. It is a further formality, which is made requisite by the law. This may be done at any time, and it is not needful to wipe out the former ineffectual contract. So, too, in regard to this assignment, the resulting trust, without provision for all the assignor’s creditors, was an omission which the law would not sanction, and which enabled the creditors to avoid it. But the assignment B supplied this defect by providing, in terms, for the payment of all the assignor’s
The only remaining question in the case is, whether the assignment was capable of being made operative as to such creditors as assented to it, and thereby make the assignee their trustee. After' some hesitation, we are compelled to believe, notwithstanding the apparent incongruity of admitting that a contract of assignment, void or voidable under the statute, may be so far affirmed by the creditors themselves, as to be binding, not only upon themselves, but good as against the other creditors, as to whom jit was originally void or voidable, that the proposition is maintainable upon the soundest principle.
This is certainly the doctrine maintained in some of the Massachusetts cases refered to in argument, Russell v. Woodward 10 Pick. 408; where it is assumed that, as fast as creditors become parties to a deed of assignment for the benefit of creditors, the trust in their favor is made operative, even against attaching creditors who are not parties, and who are, by consequence, not bound by the assignment in its original form; Edwards v. Mitchel, Supra, and other cases, 1 Gray.
It is certainly not uncommon, where a contract or proceeding is in terms declared void, as to particular persons, to construe this as synonymous with voidable or inoperative. This is one of the ordinary significations of the term, and more natural than any other, when applied to a subject matter of this kind. These assignments are made inoperative, or in popular language void, as to particular persons. It is obvious, if all the creditors assent, the defect is cured. It could not, with any show of reason, be claimed that, if all the creditors became parties to the instrument, whether by deed or parol, that they would not be bound by it, or that they might, after the trustee had gone on in faith of the arrangement, and collected the fund, and was ready to distribute, any one or more of them, recede from their contract, and hold the property by attachments. This ought not to be so. As is said in Edwards v. Mitchel, the principle, volenti nor fit injuria, applies to such assent. And if the assent of all makes it binding, it is difficult to see why the assent of any less number must not have the same effect, as to them. And this making it binding upon these creditors, it is binding upon the other creditors, if it be such a disposition of the effects as the creditor has a right to make.
The contract, here relied upon, is nothing more than the assignment of property, for the security of certain sureties who, in faith of this assignment, have assumed the debts and paid them. This is certainly such a contract as the law recognizes. It is nothing more than preferring certain creditors, by way of mortgage or pledge of personal property. And the fact that it is done, as to the debtor^ by this instrument which, until assented to by the creditors, is voidable by them, will make no difference. It is good to divest the debtor of the property; and, when assented to by the creditor, it is good as to him, and binds the trustee to retain the property, and faithfully to execute the trust, unless his contract is within the statute of frauds; and we have no difficulty upon this point. The undertaking of the trustee is an original undertaking, upon a new consideration, and, in no sense, for the debt of another. He promised to keep the property for the claimants security. Nobody else
It will be obvious, that the view here adopted is possibly, to. some extent, at variance with one line of argument adopted by nre,. in my opinion in Mussey v. Noyes & Co. But I have no occasion here to vindicate the correctness of what I may have said in that case. I adopted the view of the New York cases upon that subject, as I there say, contrary to my convictions of the justice and propriety of the case ; and if the view we now take is, in any sense,, in conflict with any of the views there put forth, which is not altogether certain, I must say, that the New England cases upon this subject, to the extent necessary to be here adopted, seem to us altogether sound. And had precisely the same view been taken of the subject in Noyes v. Mussey, the result must there have been, the same, in all respects, that it was.
This case may very properly be decided upon the views adopted in Bradley & Co. v. Dow & Trustees, one year since, in this county, that as the plaintiffs here attempt to charge the trustee under the statute, they recognize the assignment from the debtor to him, as creating a valid trust, sufficient to enable him to hold the property under the statute; and while they attempt to • charge the trustee under the statute, they must be content to allow him all the rights which the statute accords to him, one of which is to retain enough to pay what the principal debtor owes him. And no question has ever been made, that he might, under this provision, retain any amount of property or money which he had become legally bound to pay to any third party, on account of the principal debtor, before the service of the trustee process.
It "would seem, from the finding of the court upon the issue
We have not been able to discover any sufficient reason, why the decision of the county court, in admitting the claimants to become parties to the suit, was not in strict compliance with the statute. “ If it shall appear that any goods, effects or credits in the hands of any supposed trustee are claimed by any other person, by force of an assignment of the principal debtor, or otherwise, the court may permit such claimant to appear.”
Judgment affirmed.