130 P. 206 | Cal. Ct. App. | 1912
On the sixteenth day of October, 1911, one John A. De Voll was duly adjudged a bankrupt in the district court of the United States for the northern district of California, and, on the ninth day of November following, plaintiff herein was appointed trustee of the estate of said bankrupt, and he thereupon qualified and ever since has been such trustee. This action was brought by him in that capacity to recover certain personal property which he claims was attempted to be transferred by said John A. De Voll, on the eighteenth day of July, 1910, to defendant herein. The said transaction of July 18, 1910, in reference to said property, evidenced by a bill of sale, was asserted to be for the purpose of defrauding the creditors of said De Voll and "was not accompanied by an immediate delivery thereof or followed by an actual or continued change of possession thereof, and that the said personal property then and thereafter remained in the care, custody, control, possession, use, and enjoyment of the said John A. De Voll the same after the said pretended transfer as before."
One of the questions presented for consideration is whether plaintiff, as trustee, was authorized to prosecute the action. This seems to be set at rest by the provisions of the United States Bankruptcy Act. Section 70 thereof provides that "The trustee of the estate of a bankrupt, upon his appointment and qualification . . . shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt . . . 4. property transferred by him in fraud of his creditors." (Pierce's United States Code, p. 325, [30 Stats. at Large, 566, U.S. Comp. Stats. 1901, p. 3451, 1 Fed. Stats. Ann. p. 702]. In subdivision e of said section it is provided that "The trustee may avoid any transfer by the bankrupt of his property which any creditor of said bankrupt might have avoided and may recover the property so transferred or its value from the person to whom it was transferred, unless he was a bonafide holder for value prior to the date of adjudication." In this respect the trustee in bankruptcy under the United States Bankrupt Law holds a position analogous to that formerly held by the assignee in insolvency under the state law. Such assignee had the right to sue for and recover everything due to the estate for the *664
benefit of the creditors. Where a pretended transfer from the assignor was void as to creditors, the title passed to the assignee in insolvency for the benefit of the creditors and he was authorized to maintain an action on their behalf to reduce the property to possession. As between the creditors and the debtor who fraudulently conveyed property to defeat them, he was regarded as holding the title to or an interest in the property conveyed and it therefore passed to the assignee. (Brown v. Bank of Napa,
Examining the evidence we find that the only ground upon which it could be held that the said transfer was fraudulent grows out of the condition contemplated by section
The trouble seems to have been born of a misapplication ofBarton v. Brown,
Another question of moment is argued by counsel, which is suggested by the appeal from an order taxing costs. It seems that, after the suit was brought, plaintiff took possession of the property as provided by section 510, et seq., of the Code of Civil Procedure. Certain expenses incurred by plaintiff in keeping and feeding the stock during the pending of the action were allowed as a part of the costs.
In Williams v. Atchison etc. Ry. Co.,
The foregoing suggestions are made in view of future contingency, as the amount of the costs allowed being less than three hundred dollars, the action of the trial court in the matter is not reviewable upon appeal. (Foley v. CaliforniaHorse Shoe Co.,
The judgment is reversed. The separate appeal from the order taxing costs is dismissed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 15, 1913, and the following opinion then rendered thereon:
THE COURT. — In further explanation of the decision in the case of Barton v. Brown,
On April 10, 1913, the district court of appeal rendered the following supplemental opinion in connection with the appeal from the order taxing costs:
THE COURT. — In the consideration of the appeal from the order taxing costs in the above-entitled cause, ante, p. 661, [
It must be deemed settled now that the amount of money involved in an appeal from an order of the superior court taxing costs is not determinative of the jurisdiction of the appellate court. (Southern Cal. Ry. Co. v. Superior Court,
It was erroneous therefore to dismiss the said appeal, but, of course, the effect of the reversal of the judgment was to vacate the order allowing costs.