Bryan v. Brisbin

1. An assignment for the benefit of creditors executed in Minnesota and valid there, which makes preferences in favor of certain designated creditors, will not be enforced by the courts of this state in opposition to the claims of a creditor, resident here, who has attached the property previous to notice of the assignment. 2. An assignment for the benefit of creditors will not be entirely invalidated by the fact that it contains a provision making preferences as among creditors; the title will pass to the trustee, but, by virtue of section 39 of the act concerning voluntary assignments (R. C. 1845, p. 210), the provision making preferences will be entirely disregarded.

Error to St. Louis Court of Common Pleas. Plaintiffs, who reside in St. Louis, Missouri, sued Chamblin by attachment, and garnished several insurance companies in St. Louis, debtors to Chamblin. Prior to the commencement of the attachment suit, Chamblin made an assignment, dated February 4, 1857, valid by the laws of Minnesota, to John B. Brisbin, by which among other things he assigned to Brisbin the debts due him from said insurance companies. Said assignment makes preferences in favor of certain creditors. Up to the time of said attachment said companies had no notice of the said assignment. Chamblin and Brisbin reside at St. Paul, Minnesota. Brisbin interpleaded and claimed the fund attached. The cause was submitted to the court upon an agreed statement of facts. The court rendered judgment against the interpleader. He brings the cause to this court by writ of error. I. The assignment, being valid by the laws of Minnesota, will be held valid here. (Burrill on Assignments, 326.) It is also valid under our laws, although the provision against preferences, made by our statute, might require the assignee to make a different disposition of the assets from that directed by the assignment. The assignment carried to the assignee the debts due to the assignor by the garnishees in this case; and the plaintiffs, being subsequent attaching creditors, can not hold the same against the rights of the interpleader. (See Burrill on Assignments, 340 et seq. ; 4 Zabr. 162; Sto. Confl. of Laws, § 396.) I. The assignment is contrary to the policy of our laws. It makes preferences as between creditors. There is no controlling obligation upon our courts to postpone the claims of their own citizens to those of foreign creditors, especially when those of foreign creditors arise only under an instrument containing provisions contrary to the policy of our own laws. It is admitted on all hands to be a pure question of comity. (See Sto. on Confl. of L.; Burrill on Ass. 337.) As it is a pure question of comity, there is no propriety in allowing foreign creditors to obtain funds within our jurisdiction under an instrument contrary to the policy of our laws, and which if made here could not have that operation to the prejudice of our own citizens. We have decided this question already, by holding, as we repeatedly have done, that, where there is property of a decedent in this state, but whose domicil is in another state, his property here must be held to be administered on here and to respond to the claims of our own citizens. What is comity after all ? It does not in its literal signification, and it ought not in effect, go further 'than to put the citizens of other states on on an equal footing with our own. The effect of allowing the interpleader to recover here would be to make a discrimination against our own citizens. (See Brown v. Knox, 6 Mo. 306 ; Mayberry v. Pollard, 1 Harr. 349 ; Fox v. Adams, 5 Greenl. 345 ; 15 Pick. 11, 18 ; 1 Gray, 243; 10 N. H. 265; 5 N. H. 9; 1 Greenl. 326; 13 Mass. 146 ; 4 Zabr. 162.) The assignment being purely voluntary and no notice of it having been given to the garnishees before they were summoned in this suit, they will be held. (Fox v. Adams, 5 Greenl. 345.)