Kern v. Powell , 1881 Pa. LEXIS 150 ( 1881 )

Mr. Justice Mercur

delivered the opinion of the court,

The view we take of this case makes it unnecessary to con-, sider the assignments of error in detail.

Both parties claim bjr assignment from "William Kern, in trust. The legal plaintiff, in trust for the equitable plaintiff, by assignment dated the 28th March 1877 ; and the defendant as general assignee for the benefit of all creditors, by assignment dated 7th April thereafter.

Section 1 of the Act of 17th April 1843, Pur. Dig. 91, dedares all assignments of property in trust, thereafter made by debtors to trustees, to prefer one or more creditors, except wages of laborers not severally exceeding $50, shall be held and construed to inure to the benefit of all the creditors in proportion to their respective demands, and that all such assignments shall be subject in all respects to the laws now in force relating to voluntary assignments. The 5th section of the Act of 24th March 1818, Pur. Dig. 92, requires all such assignments to be recorded within thirty days after their execution, in the office for recording of deeds in the county in which the assignor resides, and on failure to so record, the assignment shall be considered nuil and void as against any of the creditors of the assignor. The 1st section of the Act of 14th June 1836, makes it the duty of the assignee within like time to file in the office of the prothonotary an inventory of the property assigned.

The assignment to the plaintiff was in trust, to pay a debt due to the wife of the assignor, which was not for the payment of wages for labor, and none of the requirements of the statutes relating to voluntary assignments was complied with by this assignee. This assignment in express terms gave a preference to one of the creditors of the assignor. Such attempted preference is made inoperative by the Act of 1843 : Worman v. Wolfersberger’s Executors, 7 Harris 59 ; Watson v. Bagaley, 2 Jones 164; Fallon’s Appeal, 6 Wright 235 ; Miner’s National Bank’s Appeal, 7 P. F. Smith 193 ; Wallace v. Wainwright, 6 Norris 263.

The assignment to his son, both in express terms and by legal intendment, created a trust. It declares the transfer to be “ in trust and for the sole use of my wife Mary Ann Kern.” Ir. proceeds “ and I authorize my said son to sell any portion of said property, and convert the same into money and to otherwise use said property, to the use of my said wife.” It is not the case of a transfer of property directly to the creditor. That would not be an assignment in trust under the statute: Chaffees v. Risk, 12 Harris 432. This assignee is not a creditor. The object and intended effect of this assignment were to vest the legal interest in him, and the equitable interest in another. That is clearly a trust: Chaffees v. Risk, supra; Wallace v. Wainwright, supra.

All preference of the plaintiffs under the assignment, was annulled by the Act of 1843. v Non-compliance with the Act of 1818 made the assignment void against all creditors of which the defendant is the representative. The property inured to their benefit. It all passed to the defendant as general assignee, who did comply with the requirements of the statute. He having taken and sold the property in execution of his trust, the jffaintiffs cannot in this action recover from him the proceeds or avails thereof: Heckert’s Appeal, 12 Harris 482; Vanarsdale v. Richards, 1 Whar. 408.

It is true a voluntary assignee is not a bona fide purchase! for value, as is shown in Wright and Slingluff v. Wigton, 3 Norris 166, and the cases there cited. That rule of law, however, does not prevent full effect being given to the Act of 1843, when applied to an assignment in conflict therewith.

As, under any view of the case presented, the plaintiffs cannot recover, the learned judge committed no error to their prejudice.

Judgment affirmed.