Maskovitz v. Simon

Opinion of ti-ie court by

JUDGE WHITE

-Affirming.

On the 19th day of October, 1898, appellant, Maskovitz, executed 'a deed of general assignment to Maurice Glide for the benefit of all his creditors. Shortly thereafter certain creditors filed suits' and obtained attachments against Maskovitz, and caused the same to be levied on the stock of goods assigned. .The ground of attachment was that Maskovitz had fraudulently conveyed his property for ‘the purpose of cheating, hindering and delaying his creditors. Of these attaching creditors there are parties to this record by cross appeal H. I). S-imon, Simon & Seiforth, "Harris, Salinskey & Co., -and C. H. Bliss & Go. It was also alleged that Maskovitz h'ad fraudulently concealed a part of his goods, and this was stated as a ground of attachment. Creditors- who did not attach came in and filed their claims, and sought to uphold the deed of assignment, and to obtain their pro rata on distribution. The assignee, these creditors not attaching, and Maskovitz joined issue with the attaching creditors as to the validity of the assignment, and Maskovitz claimed exemption allowed to a housekeeper. Pending the litigation the court placed the goods in the hands of its receiver, and by consent they were s-old, and the fund kept awaiting final judgment. The court, on hearing, sustained the attachments, and also upheld the deed, refused to allot toMaskovitz anything as exempt, and, after making allowances to the assignee, his attorneys, and to- the receiver for costs, .adjudged a pro rata distribution of the remainder among all the creditors. 'From this judgment Maskovitz appeals, and the attaching creditors named above' take a cross appeal.

In the judgment rendered the court must have concluded that at the date of the assignment Maskovitz was insolvent, and also concluded that he was fraudulently concealing or disposing of his property to defeat his creditors, as upon no other theory could the court have refused to declare the deed void, and at the same time refuse appellant exemptions Section 75, Kentucky Statutes-, being section 2 of the act of March 16, 1894, after providing for the acknowledgment and recording- the deed, and what shall pass, provides: “And the intent of the assignor in making the assignment, whether appearing upon the face of the deed, or otherwise, shall not invalidate the deed, unless he be solvent, and it appear that the assignment was made to hinder or delay creditors.” Prior to the enactment of this statute this court had held in Moore v. Stege, 93 Ky., 27 (13 R., 948) (18 S. W., 1019); Kleine v. Nie, 88 Ky., 542 (11 R., 583) (11 S. W., 590); Bank v. Payne, 86 Ky., 446 (10 R., 43) (8 S. W., 856); Bank v. Nunes, 80 Ky., 334, 4 R., 16), and other cases —under the general act as to fraudulent conveyances (now section 1906, Kentucky Statutes), that the intent with which a deed of assignment is made, and mot the actual effect of it, must determine whether or not it is fraudulent, and therefore void. The case of Kleine v. Nie, 88 Ky., 542 (11 S. W., 590), is very similar to the facts of this case, and the deed of assignment was held void; but this was before the adoption of seotion 75, supra. The provision copied supra was evidently inserted by the lawmakers to avoid the rule of this court as announced in the cases to the extent that, if the debtor is actually insolvent when the deed of general assignment is made, the deed will be upheld. And it would follow that, in so far as section 75 and section 1906 conflict, the latter section' stands repealed. Section 75 relates to general assignments made voluntarily by the debtor, and, if he be actually insolvent when the deed is made, it will be upheld, no matter what fraudulent or sinister purpose the debtor mig'ht have had in executing it. It is only when the debtor is solvent, and the assignment was made to hinder or delay creditors, that it may be declared void. This is the clear statement of the act, and must be followed, although it overrules, so far as deeds of general assignment, the former decisions of this court. From the proof in the ease we conclude that the trial court was justified in concluding that Maskovitz was insolvent, and the deed of assignment was therefore valid.

We are of opinion that from the evidence the trial court was correct in holding that appellant, Maskovitz, had concealed a part of his goods. We think it shown by a preponderance of the evidence that on Sunday before the assignment on Monday, appellant shipped two trunks of goods from his store that have never been accounted for, as1 well as other goods taken from the store, and these goods would more than equal any exemption that might be due him; and, this being the ease, he is in no position to ask the chancellor for exemptions; and, besides, he had the ordinary household goods exempted by law. Therefore, there was no error in denying him his claim of exemptions.

The allowances made by the court are not excessive. There is no evidence showing the services of either party allowed, except the record of this litigation and the amount involved. Upon this showing we will not disturb the allowances made. There appears no error in the judgment, and the same is affirmed on both original and cross appeal.