Wheeler v. Sumner, 29 F. Cas. 913

Wheeler v. Sumner

29 F. Cas. 913 | U.S. Circuit Court for the District of Massachusetts | 1826

STORY, Circuit Justice,

after summing up the facts, proceeded as follows. The principal question in this case is, whether the assignment is bona fide, or fraudulent- as to creditors. If bona fide and for a valuable consideration, then, though it may fail as to all the other preferred creditors, yet it is good to protect the plaintiff to the extent of his liability for his indorsement of the note of 200 dollars. And if so, then the property in the brig Fair American passed by the assignment and bill of sale, and the plaintiff is entitled to recover. For this is not like the case of a foreign attachment. Here the plaintiff is entitled to recover the property itself, which he holds by a regular and good transfer; and the defendant must be .deemed a trespasser to that extent.

Many of the objections taken by the defendant’s counsel have been already disposed of by the court. There are some, however, which require a more direct opinion. First, it is said, that the assignment is void, because the preferred creditors were not parties to it, neither did they assent to it at the time of its execution. It is contended, that either defect is fatal. I am of a different opinion. It was not necessary, to the validity of the assignment, that the creditors should be technically parties to it; nor that their assent should in any manner be given to it at the time of its execution. It is sufficient, if they assented to it before the present attachment, and that is conclusively proved. But this objection, if sustained. *914■would only go to the ultimate interest of the other preferred creditors in the property assigned; for as to the plaintiff, if it was bona fide, he is entitled to hold it, for he assented, and is a party to the deed. Secondly, it is objected, that here there was no delivery of the possession at the. time of the conveyance, But that was unnecessary, because no delivery of possession can be of a ship at sea. and a sale of her, under such circumstances, is good without it. It is sufficient, if the ven-dee takes possession, and asserts his title in a reasonable time and manner after her return. It is of no consequence whether, upon her return, the creditors of the vendor attach her before the vendee obtains possession or not. His title is not affected by anything but fraud or gross laches on his part.

I will only ada, that in this case, as the assignment was for the benefit of the preferred creditors unconditionally, and without any stipulation for a release or otherwise, the law would, in such a case, presume the assent of the creditors; for the assignment could not but be for their benefit, being made by an insolvent debtor. Here, however, there has been an express assent before the attachment.

Verdict for the plaintiff.