2 Barb. 9 | N.Y. Sup. Ct. | 1847
Though it is now entirely settled in this state that a debtor in failing circumstances may assign his property in trust for his creditors, and give such preferences among them as he may choose, and may also, without the consent and even against the will of all his creditors, select the assignee who is to execute the trusts of the assignment, yet such voluntary conveyances have not ceased to be regarded with jealousy. They are rather tolerated than favored. The principle of allowing an insolvent debtor to give, arbitrarily, such preferences, among creditors equally worthy, as may result in the payment of the entire debt of one and the loss of the entire debt of another, has been condemned in the strongest terms, by many of the wisest statesmen and the most enlightened jurists óf our country. Hence it is that most, if not all the laws which are passed for the relief of insolvent debtors, are found denying their advantages to such debtors as have, in the disposition of their property, given preferences among their creditors. But while courts have felt bound to sanction such conveyances, they have not hesitated to declare them fraudulent whenever, either upon the face of the instrument itself, or from extrinsic evidence, it has appeared that the debtor, in making the assignment, has intended to go beyond an absolute and faithful appropriation of his property to the payment of his debts, and has attempted .to secure any advantage to himself, or to embarrass any creditor in the collection of his debt.
In the case under consideration, Groot, not content with having created a fictitious lien upon his property, the effect and probable design of which was to discourage and prevent his creditors from enforcing the collection of their debts by a sale of his property, proceeds to commit an actual fraud upon his creditors by placing all his property in the hands of trustees, with directions to them to pay this fictitious debt in preference to his just creditors. If such a transaction can be sustained, what limit shall be set to the perpetration of fraud and injustice by the insolvent debtor? It is said that Groot was upwards of eighty years old, and very infirm and imbecile. This may be an extenuation in the moral aspect of the trans
There must be a decree, therefore, in each of these suits, declaring the assignment fraudulent and void as against the plaintiffs, so far as it conveys to the defendants any property upon which, but for the assignment, the plaintiffs’ judgments and execution's, respectively, would have been a lien.
The only question that remains is with respect to the costs. Had Groot lived, it would have been a matter of course to decree costs against him. But it has not been usual to charge the assignee with costs, even when the assignment was fraudulent on its face; except in cases of gross abuse of his trust. In this case, although it is true that the defendant Green is the party in whose favor the fraudulent preference, which vitiates the assignment is made, and although some of the witnesses seem to have understood him as claiming this fraudulent demand as a charge upon the assignment, I am not satisfied that he ever intended to hold it out to the creditors of Groot as a valid claim upon the trust funds. On the contrary, it appears that some of the plaintiffs, at an early day, were in fact informed that there was nothing due upon the judgment which Groot had confessed in favor of Green, and that no claim was made against the assignment on account of that judgment. It is abundantly shown that the property assigned, so far as it has been disposed of by the assignees, has been sold for its full value, and the proceeds applied to the payment of the bona fide creditors of Groot preferred in the assignment. The only act of fraud with which the assignees can be held chargeable is, I think, in suffering Groot to continue in the