Barton v. White

C. Allen, J.

We have no doubt that it was the intention of the Legislature, in enacting the statute relating to insolvent •debtors, to include patents as property which should pass to the assignee by the assignment. This was so declared in Carver v. Peck, 131 Mass. 291 , though the point was not essential to the *283 decision. There is nothing in the nature of a patent to prevent it from so passing. Ager v. Murray, 105 U. S. 126 . But it has been considered that an assignee in insolvency does not acquire a title merely by force of the assignment, and without a conveyance by the debtor; the reason given being that the statutes of the United States contemplate an instrument of transfer, signed by the owner of the patent, and recorded in the patent office. Ashcroft v, Walworth, Holmes, 152 .

It is now contended, on the part of the defendants, that, since a patent cannot be attached or seized on execution, it is “ by law exempt from attachment,” within the meaning of the Pub. Sts. c. 157, § 44,. and therefore, by the express terms of the statute, does not pass to the assignee. But the words above quoted do not mean that all property which cannot be attached or seized on execution shall not pass by the assignment, but only such property as is by statute exempted from attachment. Section 46 of the statute provides that “ the assignment shall vest in the assignee all the property of the debtor, real and personal, which he could have lawfully sold, assigned, or conveyed, or which might have been taken on execution upon a judgment against him.” A patent clearly is property which the owner could have lawfully sold, assigned, or- conveyed, and thus falls within the terms of § 46, though it could not have been taken on execution upon a judgment against him. The policy of the insolvent act is to vest in the assignee all the property of the debtor, of every description, except such as is exempted by statute from attachment. It has never been considered that the fact that a debtor’s property was of such a character that it could not be seized on execution excluded it from the operation of the insolvent laws. Such a construction, indeed, has not been contended for, so far as we know ; and cases assuming the contrary are numerous. Bassett v. Parsons, 140 Mass. 169. Warren v. Warren Thread Co. 134 Mass. 247 . Davis v. Newton, 6 Met. 537 , 543. Smith v. Chandler, 3 Gray, 392 , 396. Burnside v. Merrick, 4 Met. 537 . In Stearns v. Karris, 8 Allen, 597 , it was said that “ the words of the insolvent law, describing and enumerating the property and 'rights of property which, pass by the assignment, are large and comprehensive, and have always been liberally construed by the court, so as to include *284 every valuable right in property, real or personal, not clearly excepted, whether legal or equitable, absolute or conditional, which could have been enforced by the debtor in any kind of judicial process.”

The defendants further contend, though without laying very much stress upon this ground of argument, that the State has not the power to enact a statute which has the effect to pass a title to letters patent of the United States; but we have no doubt upon this point.

Under § 74 of the insolvent act, it is the duty of an insolvent debtor to make and execute such deeds and writings, and do all such other lawful acts and things, as the assignee at any time reasonably requires, and as are necessary and useful for confirming the assignment; and the assignee is entitled to the aid of a court of equity in his endeavor to acquire the title to the patent in controversy, the facts alleged in the bill being admitted to be true. Decree for the plaintiff * A like decision was made in the case of Keach, petitioner, 14 R. I. 571.