6 Me. 395 | Me. | 1830
The opinion of the Court was read at the following November term, as drawn up by
The counsel for the plaintiff contends that upon the disclosure of the trustees, they ought to be charged, on the ground that the assignment by Cox to them, which forms a part of the disclosure, is fraudulent and void, for reasons appearing on the face of it. No actual fraud is imputed to any of the parties; so that the question lor our decision is whether it is to be adjudged fraudulent and inoperative, as against the plaintiils and the other crcdi-
Several objections haye been urged by the counsel for the plaintiffs against the validity of the assignment; in the examination of which, the principles of law deemed applicable to them, will be considered and applied. Before entering into particulars, it may be useful to bestow a few observations, of a general character, upon the nature of an assignment made by an insolvent debtor in trust, for the payment of his debts. Such an assignment, when completed, is made by a deed, whereby the debtor transfers his property to some assigneee or assignees in trust, for. the payment of his debts, in such order as may be agreed upon, and to such creditors as shall, within a limited time, assent to the terms of the assignment. Such deed of assignment contains also the assent of the assignees, to perform the duties of their, appointment and their covenants to perform them with care and fidelity, according to the conditions therein expressed ; and also the agreement of a portion of the creditors-to accept of the terms of the assignment, and a release to the debtor of their several demands. When signed and fully executed by such debtor, assignee or assignees, and such creditors, without any fraud on the part of the debtor, it becomes a binding contract on all who have thus executed it; and other creditors may, if they see cause, also assent to the same within the time limited for the purpose ; which must be a reasonable time, according to the circumstances of every case. Such an arrangement is a compromise among those interested; and being made with pure motives, must be honestly observed and executed. A debtor may offer to assign every particle of his property for the purpose above mentioned ; or he may offer to assign all, excepting certain portions for his own immediate use and comfort; the creditors may reject or accept such an offer at their pleasure; and they will of course, before deciding, inquire and ascertain whether the offer is a reasonable one; and whether the excepted portions are more than may be fair
The first objection to the assignment is that Harrod was not a creditor at the time, but only a surety or indorser for Cox, and had never paid the debts, or relieved Cox from his liabilities. This is true; but the obvious answer is that the assignment was in trust to secure him as far as practicable from eventual loss by reason of his suretyship. He was then to all equitable purposes, a creditor, fairly entitled to protection and indemnity; and as such, the provision was made for him. The cases of Stevens v. Bell and Halsey & al. v. Whitney & al. cited by the defendant’s counsel, are direct and decisive authorities against the objection.
Several objections which have been urged, are founded on the clause in the assignment, by which Cox saves and excepts “ his necessary and proper household furniture, family apparel, and means of paying his small debts under fifty dollars, and ordinary family expenses.” To this clause the observations we have already made upon the nature of assignments in trust, have a general application. The excepted furniture, so far as by law attachable, must be considered as within the reach of such creditors as might incline to attach and remove it. The exception, therefore, in respect to the furniture, has not impaired the rights of any one. The reservation of the means of paying small debts is made for a commendable not a fraudulent pur
The objection to that part of the assignment, which provides for the allowance of the expenses and commissions of the assignees out of the
Again it is said that the assignment is a fraud on the law of attachment. This same objection was made in the case of Halsey & al. v. Whitney & al. Mr. Justice Story observed that he had never been able to understand precisely what was intended by this language; and after commenting upon it, he overruled the objection. An attachment of property is the commencement of a title to the property attached 3 and it may be perfected by a seasonable levy or sale, according to the character of the property ; or a title may originate by the levy or sale, without a previous attachment. This is one mode of acquiring a title. A deed made by a debtor to his creditor is another mode. In this view of the subject, the law of attachment may as well be considered a fraud on an assignment, as an assignment 'can be considered a fraud upon the law of attachment. The truth is, in the cases supposed, there is no fraud on either side. Priority in- the procurement of the title, where no improper or dishonest means are used, settles the question of right. Mr. Justice
The last objection urged is, that the assignment is void by the statutes of Elizabeth, against fraud. We see no fact or principle, in this case, which can sustain this objection. There is no pretence that there was any actual fraud in the case. All parties appear to have acted openly and in good faith. In the absenco of proof to the contrary, we cannot presume that they acted otherwise ; neither is there any question as to the consideration on which the assignment was made ; for it is stated explicitly in the disclosure, that the property and effects assigned are not sufficient to satisfy the debts of those creditors who had become parties to the conveyance before the service of the present trustee process. We are all of opinion that the trustees are entitled to their discharge.