124 Ky. 243 | Ky. Ct. App. | 1907
Opinion of the Court by
Beversing.
Daniel E. O’Sullivan, an official of tlie- City of Louisville, whose salary was $208.33 per month, being insolvent, and considerably in debt, assigned his salary fop the month of January, 1905, to appellees. He did the same for the month of February, 1905, and for the first 22 days of March, 1905. On the last-named date he filed his petition to be adjudged a bankrupt in.the United States District Court for the Western District of Kentucky. The assignments of the salary for January and February were made about the last of each month. For March the assignments were made daily. O’Sullivan received nothing contemporaneously with the assignments. But after the salary lists for the months had been allowed by the city and its warrants issued, appellees then paid them to O’Sullivan in full, retaining no commission. A few days after the January salary had been assigned, a creditor of O’Sullivan, William Kelday, having a judgment and execution returned no property found, filed his petition in equity for a discovery of assets. The city was made a defendant. It answered, disclosing that O’Sullivan had previously
When the payments were made by appellees to O’Sullivan, they knew his creditors had attached; knew he was insolvent; paid him nothing, and did not bind themselves, to’ pay him anything, for the salary claims. They were friends of O’Sullivan, and we think the record shows their purpose was to aid him in preventing his creditors from subjecting his salary to their debts. This was a violation of the bankrupt statute. Sub-section “ e ” of section 67 of that statute (Act July 1, 1898, c. 541, 30 Stat, 564 (U. S. Comp. St. 1901, p. 3449) reads: “That all conveyances, transfers, assignments, or encumbrances of property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act, subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned, or encumbered as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his. domicile, be and remain a part of the assets and estate of the bankrupt and shall pass
The salary for February assigned to appellee passed to the trustee upon the debtor’s becoming bankrupt within four months thereafter, and it should have been adjudged to appellant, although it had been previously paid over to the debtor by his assignee.
As to the March salary (that part earned prior to the filing of the petition in bankruptcy), it-was not paid to O’Shllivan till after he filed his petition in bankruptcy. Nor had appellee then paid -him anything on it, although it had been frequently assigned by the debtor to appellees. But whether it was owing by the city or appellees to O’Sullivan, it passed to the trustee in bankruptcy upon the filing of the petition, and neither could subsequently pay it save to the trustee s.o as to discharge the liability. Appellees in fact collected it from the city. They then held it as the property of the trustee, and should have paid it only to him. The rule on this subject is thus laid down in International Bank v. Sherman, 101 U. S. 407, 25 L. Ed. 866 (and confirmed recently in Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405): “The filing of the petition was a caveat to all the world. It was, in effect, an- attachment and injunction. Thereafter all the property rights of the debtor were ipso facto in abeyance until the final adjudication. Those who dealt with his property in the interval between the filing of the petition and the final adjudication did so at their peril. ’ ’
The court is of the opinion that, for the salary of February ($208.33), and for March up to the filing of the petition in bankruptcy $152.70), the trustee is entitled to recover of appellees. But for the January salary a different question is presented: The liability of appellees to account to 0 ’Sullivan, and to his creditor, Kelday, for this sum on the ground that it did not belong to appellees, had been litigated in a court of competent jurisdiction, and adjudged in favor of appellees. The litigation was not collusive. The judgment of the court' settled the title to this fund as between the parties, and decided the identical questions of fraud, valuable consideration, and notice of the debtor’s intent that are involved in this case. We think the judgment is conclusive. Ordinarily one judgment is not a bar to another proceeding unless it not only presents the same subject-matter of the litigation, or cause of action, but is between the identical parties and in the same right. Appellant, the trustee, was not a party to the Kelday suit, but the bankrupt was. There was then no trustee in bankruptcy; hence the title was in the bankrupt himself. The judgment of the court divested him of it — at least adjudged that he did not have it and that appellee did. The subsequent bankruptcy of the debtor and appointment of his trustee cannot open up that question for litigation again, in the absence of an allegation of collusion among the parties to obtain the former judgment in the State court. The trustee is a privy in the estate to the debtor, and takes liis property subject to such rights as the debtor himself had, barring his own frauds.