Dalton v. Currier , 40 N.H. 237 ( 1860 )

Bell, C. J.

The assignment made by Davis to Caller was fraudulent and void as against the creditors of Davis, because its avowed purpose and aim, and its only object and consideration, as stated in the agreement, or declaration of trust signed by Caller, was to defeat its liability to be attached under the laws of this State, where some of his creditors may obtain an unjust preference, and to secure all his property, to be applied for the benefit of all his creditors.

In the case of Blodgett v. Webster, 24 N. H. 92, it was held that, if conveyances are made by a debtor, with intention to secure himself any benefit or advantage, or to place his creditors at a disadvantage in collecting their debts; or if his object is to secure the property for the benefit of his creditors in his own way, without their knowledge or consent, it is a fraud in law; or, as it is otherwise expressed, deeds made to keep the property of the debtor from his creditors, and prevent them from taking it to secure and satisfy their debts, and so leave it in the power of the debtor to take his own time, and use his own manner for applying it to the payment of his debts, would clearly be made to delay creditors, and deprive them of the right, which the l|tw gives them, of taking their remedy into their own hands under legal process ; and this would be such a fraud as would render the conveyances void as to creditors.

In Seavey v. Dearborn, 19 N. H. 858, the court, by Woods, J., say: “ The instructions of the court, that if the design of Hills in selling the goods was to place his property out of the reach of legal process, and to delay his creditors more than they would be delayed but for the sale, such a design was fraudulent, appears to have been clearly within the meaning of the statute of frauds, and the decisions under it.” Robinson v. Holt, 39 N. H. 557.

Before the attachment made by the creditors in this case, on the 10th of October, proceedings had been commeneed on the 7th against Davis, the debtor, who was, it seems, a resident of Salem, in Massachusetts, before the court of insolvency of the county of Essex ; he was decreed an insolvent;' the plaintiff regularly chosen and appointed assignee, and a decree passed by the court transferring to the plaintiff all the estate of Davis.

On the next day Caller executed to the plaintiff an assignment of the property included in Davis’ bill of sale to him.

The effect of these assignments upon the title to the property, as against other creditors of Davis, who have chosen to attach, is here in question.

And, first, the effect of the decree transferring Davis’ property to his assignee. As to this point, the decision of the court in Hall v. Boardman, 14 N. H. 40, is conclusive, where Parker, C. J., says, in reference to the statute of Massachusetts here in question : “It being conceded that all the proceedings were regular, the assignment was valid to pass the property in the hands of the person now summoned as trustee, and the moneys collected by him are now payable to the assignees, unless some other right has intervened since the assignment, and which is superior to it. Saunders v. Williams, 5 N. H. 213.

The same principle is held by the court in 5 N. H. 214, where the court say: “ It has been thought by some that a transfer of personal property to the assignees of a bankrupt, agreeably to the laws of the country where the bankrupt has his domicil, was equivalent to an assignment of the same property by the bankrupt himself, and so passed the title, wherever the property might be. But it must now be considered as a part of the settled jurisprudence of this country, that a prior assignment in bankruptcy under a foreign law will not be permitted to pi'evail against a subsequent attachment by an American creditor of the bankrupt’s effects found here.” 2 Kent Com. 329; Blake v. Williams, 6 Pick. 286; 4 Cow. 410, note; 20 Johns. 229; 5 Cranch 289.

The rule which must give effect here to a bankrupt law of a foreign jurisdiction, is a mere rule of comity, and not of international law ; and, in the present circumstances of this country, it is thought that no rule of comity can require us to give effect to a foreign law of bankruptcy here, in such a manner as to deprive our own citizens of the remedy which our laws give them against the property of foreign debtors, which may be found in this country.

The same exception is expressly recognized in Sanderson v. Bradford, 10 N. H. 264, where Parker, C. J., says : “But the settled doctrine maintained by the courts here is, that a prior assignment in bankruptcy, under a foreign law, will not transfer the property, as against a creditor of the bankrupt who is a citizen of the government where the property is situated, or the debt due. 2 Kent Com. 330, 524; Saunders v. Williams, 5 N. H. 213; Ogden v. Saunders, 12 Wheat. 215.”

The assignment by the court of insolvency would not be effectual to transfer this property, as against a subsequent attachment of the same property by a New-Hampskire creditor under our attachment laws.

The assignment made by Caller was at most a transfer of the title acquired by him under his bill of sale, just as he held it. It was not a case of a bond fide purchase for a valuable consideration, which might give a better l’ight than the assignor himself had, and perhaps might entitle him to hold the property absolutely, notwithstanding the defeasible character of his assignor’s interest. It was, and it professed to be, merely a transfer of such title as he had acquired by Davis’ bill of sale. As against the defendant, representing the rights of a creditor of Davis, that bill of sale was voidable, and the title defeasible. It was so in Caller’s hands, and no less in those of the plaintiff.

The titles, then, set up by the plaintiff, being none of them valid against the defendant, there must be

Judgment for the defendant.