Sanborn v. Wilder , 68 N.H. 471 ( 1896 )

All the estate of an insolvent debtor, not exempt from attachment, including property sold or transferred by him if the sale or transfer is fraudulent as to creditors, vests in the assignee. P. S., c. 201, ss. 6, 26.

The question whether the sale, as a matter of law, was void as against the creditors of William because there was no apparent change in the possession of the visible property of the firm (Coburn v. Pickering,3 N.H. 415) need not be considered, since it is found that the sale was not made in good faith, or, in other words, was fraudulent in fact.

In regard to the defendants' claim, that at the time of the sale William had no interest in the firm but, on the contrary, was largely indebted to it, it is sufficient to say that though some evidence on the subject is reported, the fact itself is not found. The plaintiff seeks to recover William's interest in the property of the firm after a final settlement of its affairs. What this interest, if any, may be, is a question to be determined on an accounting.

If, notwithstanding the proceedings in insolvency, William's assets in the hands of the assignee were sufficient to pay his debts in full, there was no occasion for this suit. It was therefore material for the plaintiff to show that for the payment of the debts the property fraudulently conveyed was necessary. All the assets of William consisted of Bartlett Peaslee's direct indebtedness to him; and all his liabilities, of debts upon which they were the principal debtors. If they could pay their debts in full, or even eighty per cent of them, a balance, after paying William's debts in full, would be left in the plaintiff's hands. These facts, with the further fact that Bartlett Peaslee's assets were insufficient to pay more than twenty per cent of their debts, appeared in the schedules received in evidence. The defendants excepted to their reception, not on the technical ground that the schedules were incompetent evidence of those facts, but because (as stated in their brief) the facts themselves have "no tendency to show that David had acted dishonestly, or that William's creditors have been injured by the sale of the partnership property to David." If the defendants had excepted specifically on the ground that the schedules were not competent evidence of the facts therein stated, the objection, if tenable, might readily have been obviated. Heath v. Heath, 58 N.H. 292; Haines v. Insurance Co., 59 N.H. 199.

Exceptions overruled.

BLODGETT, J., did not sit: the others concurred.