Doe v. Scribner , 41 Me. 277 ( 1856 )

Goodenow, J.

The assignment having been signed by the plaintiff, there is no reason to presume that he released any claim, which did not come within the statute of 1844, c. 112, § 1. We are of the opinion, therefore, that the assignment is not void in consequence of the insertion of the clause providing, that “ the said subscribing creditors for the consideration aforesaid, do severally for themselves release unto said Scribner all manner of actions, debts, demands and claims whatsoever, which they have against him.”

But we are of the opinion, thát if the defendant made conveyances of his property, with an intention to delay, defeat or defraud his creditors, before the execution of the assignment, and in contemplation of making an assignment of his property, he cannot be permitted to interpose the assignment against the plaintiff’s right to recover in this action. The plaintiff may be ready to take upon himself the burthen of proving such conveyances fraudulent; while the assignees might decline to do so. He should be allowed that privilege. The case of Woodward v. Marshall, 22 Pick. 468, was an action against the assignees, as trustees, and they were discharged. Similar were the cases of Fairbanks v. Haynes, 23 Pick. 232; Brown v. Foster, 2 Met. 152, and Macomber v. Weeks, 3 Met. 512.

The assignees may be entitled to hold the property assigned to them in trust for the benefit of the creditors; while the defendant may have so conducted in making the assignment or arrangements preparatory to it, as to destroy his claim to be discharged from the plaintiff’s demand. The assignment may be valid for some purposes and as to some parties, and invalid for other purposes and as to other parties. "We are of the opinion, that if the conveyances stated were made to defraud creditors and in contemplation of making an assignment of his property by the defendant, that the assignment is so far void as to him, that this action, according to the report of the Judge, should stand for trial.

Tenney, C. J., and Bice, J., concurred. Appleton, J., dissented.