Kelly v. Lane , 28 How. Pr. 128 ( 1864 )

By the Court^*—Leonard, P. J.

The only property of the debtors in the attachment-suit upon which service could be made by the sheriff, passed under an assignment from them to Wiley and Lawrence, made in trust for the benefit of creditors.

This assignment was assumed by the learned justice, before whom this action was tried, to be fraudulent as to creditors ;■ and no facts were found by him upon the issues made by the pleadings in that respect; but the complaint was dismissed upon the sole ground of the want of authority in the sheriff to maintain this action.

1 It will be assumed, therefore, in considering the appeal herein, as it was by the justice below, that the assignment was, and is fraudulent as to creditors.

Had the assigned property, consisting of merchandise, the proceeds of which, in cash, are now deposited in the United States Trust Company, to the credit of the said assignees, remained in the bands of the said assignees as merchandise, at the time the attachment was issued to the sheriff, it cannot be disputed that it might have been seized, and that the sheriff could have maintained his title under the attachment, against any action brought by the assignees to recover its possession or value, upon the ground that the title of the assignees was fraudulent and void as to creditors, of whom the sheriff would stand as the representative. And this defence would be open to the sheriff, notwithstanding no judgment had yet been recovered in the attachment-suit.

These principles are now settled after considerable conflict of legal authority, by the court of last resort in this State, all the judges in that court concurring. (Rinchey a. Stryker, 26 How. Pr., 75.)

It has been held in this action by the judgment at special term, in substance, that the attachment issued on behalf of creditors against their debtors, cannot be made effectual to reach the property of these debtors, so assigned, notwithstanding the fraudulent character of the assignment; because the property is no longer tangible, but has been converted by the assignees into money, and so deposited in the Trust Company, as to create the relation of debtor and creditor between the assignees and the said company in respect to the fund.

If this proposition is correct, the judgment must be affirmed, otherwise the plaintiffs will be entitled to a new trial.

It is made the duty of the sheriff to collect and receive into his possession “ all debts, credits, and effects of the defendant,” against whom an attachment has been issued. {Code, § 232.)

The sheriff is to make such collections, subject to the direction of the court or judge; and it is not probable that he would be allowed to collect any greater sum than would be sufficient to satisfy the demands for which the process in his hands had been issued; and, perhaps, he might not be permitted to collect debts, &c., in case there was tangible property upon which the attachment could be levied.

Clearly, the sheriff would be permitted in a proper case to maintain an action to recover money due from any person to the debtor in the attachment, upon open accounts, bonds, bills, notes, checks, &c.

What significance is to be given to the word “ effects,” contained in section 232 ? It is used, to mean something in addition to “ debts and credits.” Is money, or other effects, fraudulently disposed of by a debtor, and attempted to be concealed from his creditors, to be held beyond the reach of an action by the sheriff under this section, on the ground that the relation of debtor and creditor does not exist between the defendant and the fraudulent possessor ? The money or other effects fraudulently concealed or disposed of would, as to j udgment-creditors, be considered the property of the debtor in the attachment.

It is true the fraudulent assignor could not maintain an action, to recover his money or property so disposed of. As against him the fraudulent title may be valid.

The objection, as against a creditor, is Very different. A judgment-creditor having an execution returned unsatisfied, can maintain his action in a court of equity, to have any fraudulent disposition of his debtor’s money or other property set aside, on the ground of fraud, and the property applied to the satisfaction of his judgment.

This relief is granted under this equitable power of the court, without any lien on the part of the creditor.

Here it is the assignment only that prevents the money, deposited by the fraudulent assignees, from being considered assets of the debtors in the attachment at' common-law.

It cannot be said that the sheriff must be denied all relief in the courts under section 232, except that which is usually denominated of a common-law character.

Unless we are to adopt such a rule, there can be no good reason for holding that the sheriff may not come into a court of equity, to break down a fraudulent barrier that prevents him from collecting the effects of the debtor in an attachment by a common-law action; and having taken cognizance for that purpose, proceed to administer that justice which the case may require upon the merits.

There is no distinction in principle between the rule which permits the sheriff to impeach the title of a fraudulent assignee of a debtor in an attachment, in order to maintain his seizure of property belonging to such debtor, in an action brought against the sheriff, and permitting the affirmative assertion of fraud in an action brought by the sheriff to recover debts, credits, or effects of the debtor in the attachment, held by an assignee of the debtor, under a title fraudulent as against creditors.

The moment the assignment from these debtors shall be declared fraudulent as to their creditors by a court of competent jurisdiction, the money deposited to the credit of their assignees becomes credits or effects of the debtors, liable to be recovered by the sheriff in an action under section 282.

The true and liberal construction of this section of the Code requires us to hold that debts, credits, or effects, held under a fraudulent title from a debtor in an attachment, are to be considered as debts, credits, or effects of the debtor when the question is between the party holding under such fraudulent title, and the attaching-creditor, or the sheriff who represents such creditor.

This principle is necessarily to be implied from the provisions of the Code in relation to the remedy by attachment, and the decision of the Court of Appeals before adverted to.

It is the application of a principle analogous to the relief afforded by a court of equity in removing an impediment which prevents a creditor from obtaining satisfaction by a levy and sale on an execution.

The principle insisted on by the learned counsel for the respondents, and recently applied by the court in another case, by which the Trust Company was denied the right to inter-plead the attaching-creditors, and their depositors, Wiley and Lawrence, assignees of Lanes, Boyce & Co., in respect to the fraud in question, has no application here.

While it may be true that the Trust Company could not be permitted to call in question, in a court of j ustice, the right of their depositors to the money deposited with the Trust Company to their credit, it by no means follows that a creditor, or the sheriff representing a creditor under an attachment, may not impeach the title of the depositor to the same fund. The theory of that decision was, that it was the business of the creditor to enforce his rights, and not for the Trust Company to volunteer for the purpose of raising a litigation which the creditor might not think proper to encounter.

It was suggested at the argument that the attaching-creditors, if successful here, would obtain an advantage over prior actions by judgment-creditors, which had been commenced, to have the assignment in question declared to be fraudulent and void.

No such fact appears from the papers in this case; but if there are such suits, the result anticipated need not necessarily follow. The determination of the present action affects only the parties to it.

Whenever other parties shall make it appear tq the court in a proper proceeding for that purpose, that they have prior or better rights to the fund in question, the judgment in the present case can be no obstacle to their obtaining it.

We adjudge only upon the rights of the parties before the court in the present action.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Sutherland, J. (dissenting),

after stating the facts, continued: I think the complaint was properly dismissed, on the following grounds :•

1. The sheriff had no interest which gave him the right to be the plaintiff in the action. The action is brought for the exclusive benefit of Belmont & Co., the judgment-creditors. If the assignment is declared fraudulent and void, and the sheriff recovers the money, he will of course pay it over to Belmont & Co. If the assignment was or is fraudulent and void, it was and is fraudulent and void as to the creditors, not as to the sheriff. Hot only had the sheriff' no interest which could properly make him the plaintiff, but he is wholly a volunteer plaintiff, unless the service of the attachment on the Trust Company made it his duty, as sheriff, to bring the action.

2. It cannot be seriously claimed, that the sheriff had a right to bring the action as the trustee of an express trust.

3. It follows, if the sheriff has a right to maintain the action, that it is by the express authority of some statute. {Code, §§111, 113.)

The presiding justice, in his opinion, refers to section 232 of the Code, as containing this authority.

This section, after speaking of the manner in which the sheriff shall proceed on the attachment, and directing him to keep the property seized, or its proceeds, to answer the.judgment which may be obtained in the action, says, that he “ shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the defendants.”

But it is plain that this action was not brought to collect a debt, &c., of the defendants in the attachment-suit, within the meaning of this provision of the Code. The sole purpose of this action is, to reach equitable assets, beyond the reach of the attachment and execution in the attachment-suit; and yet the claimed legal lien acquired by the attachment is pointed to as the foundation of the sheriff’s right to maintain the action. The fact is, the sheriff did not, by the service of the attachment outlie Trust Company, attach a debt or credit of Lanes, Boyce & Co., the defendants in the attachment. Though the assignment should be declared fraudulent and void as to their creditors, yet it was and is valid as to them. The relation of debtor and creditor did not exist between the Trust Company and Lanes, Boyce & Co. when the attachment was served on the Trust Company.

If the deposit of the moneys by the assignees with the Trust Company created a debt, it was a debt of or to the assignees. If the sheriff should obtain a judgment in this action setting aside the assignment, and declaring Belmont & Co. equitably entitled to enough of the funds in the hands of the Trust Company to pay their debt, this judgment would be entirely consistent with the fact, that when the attachment was served the Trust Company was not indebted to Lanes, Boyce & Co., and, therefore, that the sheriff did not and could not attach any debt of theirs. In granting the relief asked for by virtue of its equity powers, the court would not be required to declare, and never could or would declare, otherwise.

It appears to me, therefore, that the reasoning to show the sheriff’s right to bring this action by the express authority of section 232 of the Code, not only assumes that when the attachment was served on the Trust Company, the assignment was void even as between the assignors and assignees, but also, that the assignment had been judicially declared void as to Belmont & Co., though they had not then recovered a judgment, and though the very question in this case is as to the authority of the sheriff to bring an action to have the assignment declared void, and that these unauthorized assumptions are not the only defects of the argument; for the relief asked for by the complaint, if granted, would be entirely consistent with the fact that when the attachment was served, the Trust Company was not indebted to Lanes, Boyce & Co., but to their assignees, for or in the amount deposited by their assignees.

It is not necessary to question the right of the sheriff to go into a court of equity, if necessary, to collect debts, credits, and effects of the defendant in the attachment, in fact attached by him.

4. It appears to me, that the recent decision of this general term, in the case of the United States Trust Company against Le Eoy M. Wiley and others, that the Trust Company, under the circumstances, could not maintain a bill of interpleader, is inconsistent with the conclusion arrived at by my associates in the principal case. I think the decision referred to was right.

5. I have never doubted, that the sheriff, when sued for seizing chattels under an attachment or execution, by a third party, claiming under assignment from the defendant in the attachment or execution, might show, as a defence, that the assignment was fraudulent and void as to the plaintiff in the attachment or execution ; but does it follow that the sheriff, upon or after such seizure, could bring an action in his own name, to have the assignment set aside as fraudulent ? I think such an" action would be an anomaly.

An attachment or execution directs the sheriff to seize-the goods and chattels of the defendant. He seizes certain chattels as the chattels of the defendant. If made an involuntary defendant for such seizure, it is reasonable that he should be permitted to show, for his own protection, if not for the benefit of the attaching or execution-creditor, that the assignment is fraudulent, and that as to such creditor the chattels were at the time of the seizure the chattels of the defendant in the attachment or execution; but does it follow that the sheriff could, after the seizure, volunteer to bring an action to have the chattels declared the chattels of the defendant in the attachment or execution ? The attachment is his authority for making the seizure, at the peril of being able to show, in a suit against him, the alleged assignment to be fraudulent and void; but where is his-authority for bringing the action to have the assignment declared fraudulent and void ?

6. This action by the sheriff, so far as I am informed, is without precedent. It is not a violent presumption, that Lanes, Boyce & Co., at the time of their assignment, had many creditors beside Belmont & Co., and that other creditors, before the attachment was served on the Trust Company, were in a position to commence, and had commenced, actions, to set aside the assignment as fraudulent, and reach the equitable assets. It is difficult to see any possible motive for serving the attachment on the Trust Company, and then, under color of the claimed legal lien acquired by such service, commencing this action in the name of the sheriff, other than to displace or forestall such prior equities, and gather the fruits which superior diligence had equitably entitled such other creditors to.

If this was the motive or purpose, we are not called upon in this case to strain the law to create a precedent.

On the question of the right or power of the sheriff to bring this action, it is sufficient to give force to this suggestion, that there may have been such prior equities. It is not an answer to it to say that the sheriff may have to take the relief asked for in this action, subject to such prior equities. Such qualified right or decree is not consistent with the theory of the sheriff’s right to bring the action.

7. If my brethren are right in the conclusion they have come to, and it is established as a rule or principle of law that the sheriff had a right to bring this action in his own name, then sheriffs, in addition to their other powers and duties, are the grand trustees, prosecutors, or almoners of or for defrauded creditors ; and it is their duty to hunt up and ferret out frauds, and bring actions to reach equitable assets, in their own names, for the benefit of defrauded creditors.

I cannot think there is any law clothing sheriffs with any such general administerial official capacity or duty.

8. It is doubtful whether the judgment-creditors, Belmont & Co., on the facts stated in the complaint, could have maintained the action.

The execution had not been returned when the action was commenced.

It cannot be said, that the assignment was an obstruction in the way of their execution ; for if the assignment had been out of the way, their execution could not have reached the funds in the hands of the Trust Company.

9. The presiding justice in his opinion remarks, more than once I think, that it is conceded the assignment is fraudulent and void as to creditors. I presume nothing more is meant by this, than that, in examining and deciding the question of the right of the sheriff to bring and maintain the action in his own name, it may or should be conceded that the assignment is fraudulent and void. I am not aware of any concession as to the fraud, other than this logical concession. The answers of the defendants who have answered, other than the Trust Company, put in issue the alleged fraud. I am not aware of any concession in fact as to the fraud.

I think the judgment appealed from should be affirmed, with costs.

* Present, Leonard, Clerke, and Sdtheriand, JJ.