Peach Orchard Coal Co. v. Woodward

105 Ky. 790 | Ky. Ct. App. | 1899

JUDGE BURNAM

delivered the opinion of the court

■John Carlisle, a resident and citizen of Cincinnati, Ohio, made a general assignment of all his property, wheresoever situated, to appellee, on September 8, 1892, for the benefit of all his creditors, equally. Appellee, also a citizen and resident of Ohio, accepted the trust, executed bond, and took the oath, as required by the laws of the State of Ohio, and thereafter he instituted suit against appellant to recover the possession of certain personal property belonging to his- assignor which passed under the deed of assignment and which he alleged was in the possession of and wrongfully detained by defendant. The defendant denied the allegations of ownership on the part of plaintiff, and the wrongful detention of the personalty in question, and moved the court to dismiss the action, on the ground that the assignee had not qualified as such in this State, and could not, therefore, maintain the suit. This the court refused to do, and trial before a jury resulted in a verdict and judgment for plaintiff, and this appeal seeks to reverse that judgment.

The proof demonstrates conclusively that'the property in contest belonged to plaintiff’s assignor, and, there being no error in the instructions submitting the issue to the jury, the only question before this court is, can an assignee, under a deed of assignment for the benefit of creditors executed in Ohio, maintain an action in the courts of Kentucky for the recovery of the possession of personal property which passed under the deed of assignment, and which is wrongfully held by a citizen of this State?

Section 8878 of the Kentucky Statutes provides: “By giving bond, with surety, resident of the county in which the action is brought, non-resident executors or administrators of persons who, at the time of their death, were non-residents of this Commonwealth, may prosecute actions for the recovery of debts due to such decedents.” But there is no provision of the statute which authorizes or requires a foreign assignee to execute any bond to enable him to maintain an action in his own name under a deed of assignment or qualification in another State; and, if the contention of appellee is sound, there is no way in which he could recover possession of assigned property wrongfully withheld by a citizen of this State. He would be without remedy, as he could not maintain an action in his own name, and could not qualify as assignee in this State, there being no statute authorizing such a proceeding.

There is no reason why a regularly appointed and qualified assignee in the State of Ohio should not maintain an action in this State for the recovery, of personal property, which passed to him under a general deed of assignment for the benefit of all the creditors of the assignor, equally against the person wrongfully withholding same, especially when it affirmatively appears that there are no preferences in the deed of assignment, and no creditor of the assignor residing in this State is prejudiced thereby.

This doctrine was fully recognized in the eases of Coffin v. Kelling, 83 Ky., Gá9, and Rubel v. Banking Co., 10 Ky. Law Rep., 1021.

In the latter case the court said: “Where an assignment for the benefit of creditors, executed by a debtor in another State, secures to creditors in this State all the rights they would have had under an assignment executed in this State, the courts will aid the assignee in securing the property of the debtor in this State, whether visiblejtropertj'- or choses in action.”

Tbe court did not err in its refusal to dismiss the proceedings or to give the peremptory instruction asked by appellant on this ground. The judgment is affirmed.