Pinneo v. Hart

| Mo. | Oct 15, 1860

Napton,. Judge,

delivered the opinion of the court.

Where a debtor makes a general assignment of all his property for the benefit of all his creditors, we are unable to perceive any reason for disturbing this disposition of his property, upon an allegation that some of the claims in the list of preferred debts are fictitious, and that the assignee was aware of their fraudulent character. How can the participation of the assignee in the fraud contemplated by the debtor furnish any obstacle to the bona fide creditors, since the control invested by our statute in the court over the entire administration of the trust ? If the trustee is disposed to advance the fraudulent purposes of the assignor, ho can be displaced and another substituted. If the assignor has put down fraudulent and fictitious claims in his schedule, they can be contested as well in the administration of the effects by the assignee, under the orders of the court, as in a suit by an attaching creditor. The only difference is, that the attaching creditor, if successful, sweeps away the whole fund, and a proper administration-of it under the assignment distributes it equitably among all the creditors. Some intimations have been thrown out in one or two opinions of this court, from which it seems to have been inferred that a knowledge on the part of the assignee of the fraudulent designs of the assignor would let in the attaching creditor; but the cases did not turn upon the point. The judgment of the court in all the cases sustained the assignments; and although the observation is made that the fraud charged must be brought home to the assignee _as well as the assignor to warrant the court in treating such" assignments as nullities, yet, as the complicity of the assignees was not set up in these cases, the effect of it, if established, was not in question. (Gates v. Labeaume, 19 Mo. 17" court="Mo." date_filed="1853-10-15" href="https://app.midpage.ai/document/gates-v-labeaume-7999174?utm_source=webapp" opinion_id="7999174">19 Mo. 17; Wise v. Wimer, 23 Mo. 238.) However this may be, as our statute law now stands in reference to this class of instruments, we see no propriety in allowing an attaching creditor to assail an assignment merely because the assignee is alleged to be a participator in the fraud. If he is, let the court, which has jurisdiction over the administration of the assignment, displace him and appoint another. It may be also observed, that it is not easy to see how the mere knowledge or suspicion of an assignee that some of the preferred claims enumerated in the assignment are fictitious, leads to an inference that he is disposed to promote the fraudulent purposes of the grantor. He may intend to disregard them, and administer the fund according to law; but his purposes in relation to the trust confided to him are not important, except so far as they may influence the creditors to ask his removal. There is no necessity, in order to get rid of the assignee or of fictitious claims inserted in the deed, that the assignment should be annulled altogether, and the property left to the first attaching creditor or to a general scramble.

The judgment is reversed and the cause remanded.

The other judges concur.