25 Barb. 662 | N.Y. Sup. Ct. | 1857
As soon as the judgment creditor’s suit was instituted, the plaintiffs in that suit obtained a lien on all the choses in action of Rutter. All the title he had was subject to that lien ; all that he could pass was subject to it. When the receiver was appointed (whether Rutter assigned to him or not) he acquired the title to those choses in action, which Rutter had when the action was commenced. In contemplation of law the title vested in the court when the action was commenced, and passed as from that date, to the receiver. The right of Rutter or his creditors, after the assignment, was only to any surplus that might be realized from the sales of the debtor’s assets beyond the amount payable to the complainants in the creditors’ suit. That right the present plaintiff may still have against the receiver; but as the receiver had power to collect the whole debt, his settlement of the same discharged the defendants from any liability to Butter or his assignees ; no fraud in the settlement being imputed.
When Butter presented his petition for his discharge in bankruptcy, eight days after the creditors’ bill was filed, he could make no assignment or surrender of property, in that proceeding, except such as was subject to the previous transfer of title which was effected by the creditors’ bill. He could make no greater assignment voluntarily, and a bankrupt can pass no greater title to his assignee in bankruptcy, than he can pass to a private person, (unless the case of a previous assignment in favor of creditors be an exception.) He can do only what he is required to do—surrender his own property; not that to which others have acquired a title from him. The right of the complainant in a creditor’s bill is sometimes called a lien, but it gives an immediate right to have a transfer of the defendant’s property made to a receiver. So that as between the receiver and a subsequent assignee, the title to the property itself passes
to the receiver, and from the judgment debtor. The judgment debtor may assign his title subject to the receiver’s title, but he cannot thus pass the title to the thing assigned, from the receiver ; but only the right to any surplus that may remain after satisfying the claims represented by the receiver.
The receiver therefore had a title superior to that of the general assignee in bankruptcy, and his release discharged the defendants : so that neither the general assignee nor any purchaser from him can sustain an action, upon the claim, against the defendants.
The judgment should be affirmed, with costs.
Mitchell, Roosevelt and Peabody, Justices.]
