Harlow v. Tufts , 58 Mass. 448 ( 1849 )

Shaw, C. J.

This is a petition filed by the complainant, as the assignee in insolvency of Alexander Gregg, of Med ford, an insolvent debtor. It is an original petition to this court, in the nature of an appeal from a decision of the judge of probate for this county, before whom such insolvent proceedings are pending.

The petition sets forth the petition presented to the judge of probate, and the matters contained in it, alleges that the judge of probate declined and refused to sustain the petition and grant the prayer thereof, when, in truth, the petition ought to have been sustained and the prayer thereof granted. To this petition, and the notice granted thereon, the respondents have appeared, and put in a general demurrer, which has been argued by counsel. We think the case presents three questions: 1st. Whether this court have jurisdiction to revise the decision of the judge of probate; 2d. Whether the judge of probate had jurisdiction to entertain and act on the petition; and 3d. Whether, upon the merits, the petitioner was entitled to the relief prayed for.

As to the first question, the court are of opinion, that they have jurisdiction under the original insolvent act, St. 1838, c. 163, § 18, which gives the court a large and general superintending power and jurisdiction of all cases coming under the act. In addition to the power of making general rules, it gives the court authority, in all cases not otherwise specially provided for, upon bill, petition or other proper process, of any party aggrieved by any proceedings under the act, to hear and determine the case. This power was made broad and comprehensive, as we believe, because the legislature were providing a system of very extensive practical operation, and it was manifestly impossible to anticipate and provide for all the particular cases which might arise. This power has been recognized and acted on, in many cases, a few of which it will be sufficient to cite. Wheelock v. Hastings, 4 Met. 504; Eastman v. Foster, 8 Met. 19 ; Barnard v. Eaton, 2 Cush. 294. The two latter were petitions to revise proceedings of a judge of probate and master in chancery, and were sustained.

It may be proper, however, to remark, that although the power thus conferred on the court, is general, they will consider, in the exercise of it, the purpose for which it was given, namely, to reach cases not otherwise provided for; and they will probably therefore be slow to exercise it, until other remedies, to be obtained in the ordinary course of proceeding, have been exhausted.

In considering whether the judge of probate had jurisdiction, it is necessary to look at the original petition, in order to determine what was sought. The petition sets forth the insolvency of Gregg, an insolvency commenced on his own voluntary application, made at a time and under circumstances calculated to induce a belief, that an execution was about issuing against him, and for the purpose of defeating such creditor; that within six months previously thereto, the said debtor, being in fact insolvent, and having no reasonable ground to believe himself solvent, had conveyed a valuable real estate to the respondents, with the intent and purpose of giving them security for a preexisting liability, as indorsers, and in order to give them a fraudulent preference over his general creditors; and that the respondents had no reason, at the time of receiving such conveyance, to believe that Gregg was solvent.

This petition is founded on the provisions of the statute of 1846, c. 168, § 1, providing that every judge of probate and master in chancery, before whom an insolvent proceeding is pending, upon complaint on. oath, by any person interested in the estate, against any one suspected of having fraudulently received, concealed, embezzled or conveyed away any of the money, goods, effects or other estate of such insolvent, may cite such suspected person to appear before him and be examined on oath, (fee., touching such complaint.

It is argued, that this provision was intended only to investigate actual frauds, cases where the property of the insolvent had been obtained without any consideration: but we think the purpose of the act was to enable the creditors to discover and pursue property, which had been so withdrawn from the assets of the insolvent, that it could not be made applicable to the satisfaction of the general debts, to which it ought to be applied. A preference given in the manner set forth in this petition, by the statute of 1841, c. 124, § 3, is declared void, and the assignees are empowered to recover the value of it. This puts such conveyances on the footing of conveyances under the" old statutes, holding them fraudulent as against creditors, and of course void.

Another argument against the allowance of this petition is, that the statute of 1846, c. 168, does not extend to fraudu lent conveyances of real estate. This question is certainly not without difficulty. In the first place, it seems to us, that the reason for this rule is as strong in the case of real estate as of personal. The assignee is certainly a person interested within the words of the statute ; the right to the property is vested in him, in trust for the creditors, and he is their representative to obtain and apply it. The purpose of the statute seems to be, by a thorough investigation of the case, and an appeal to the conscience of the party suspected, to enable the assignees to judge whether they will proceed to reclaim such property for the general creditors, and to obtain evidence to aid them in prosecuting such claim. But the phraseology of the statute is peculiar. It is, “ Any one suspected of having fraudulently received, concealed, embezzled or conveyed away any of the money, goods, effects, or other estate,” Sic. The term “received,” and perhaps the term “concealed," will apply to the obtaining of real estate as well as personal. One who takes an apparently legal title to real estate, which is void in consequence of some secret defect or vice, in common parlance, is said to cover up such estate, or to concea. it. But the more plausible objection lies in the other clause. “ money, goods, effects or other estate.” There is a common and often a useful rule of construction, that when severa, particulars are named, followed by a more generic term, it is considered, that the more generic term intends only other things ejusdem generis, or of the like kind; so that here we ought to hold, that “ other estate ” means other estate of like kind, or personal estate. But we have already observed, that the same reason applies to both real and personal property, from which it may well be inferred that both were intended. But, further, in comparing this clause with that of Bev. Sts. c. 65, § 7, respecting the embezzlement of the goods of a deceased person, under the administration of an executor or administrator, the words are identical with those under consideration, except that the words “ other estate” are omitted.

Executors and administrators having no direct concern with any other than personal property, the provision was properly limited to money, goods and chattels. But when the same mode of investigating the property of a living insolvent, under the administration of an assignee, for the general benefit of creditors, is provided, whose authority and duty extend as well to real as to personal property, and the legislature, in adopting the former law, and extending it to the payments of a living insolvent, for some purposes, carefully added, after the enumeration of the several kinds of property in the former act, the words “ or other estate,” the most natural conclusion is, that they intended to include all the property of such insolvent liable to be applied by the assignee to the payment of debts. The language will well bear this construction, and taking the purposes of the statute and the language together, we think it is the true construction. We are therefore of opinion, that the respondents were bound to appear, pursuant to the citation, and answer interrogatories touching said supposed fraudulent sale, made in the manner set forth in the petition.

The petition of the assignee prayed that the judge would pass an order directing the respondents to convey the estate in question to him. Whether the judge of probate had any authority to grant such relief we give no opinion; but we do not think that the right to the discovery prayed for, given by statute, depended on the power of the judge of probate to grant such relief. It was a statute provision of which the assignee was entitled to the benefit, as far as it went, and with which the respondents were bound to comply.