Kitchen v. Reinsky

1. Practice — Trial — Affidavit — Admissions — Subsequent Trial.—Plaintiff claimed certain property as purchaser at assignee’s sale, and. at the trial defendant obtained a continuance upon affidavit that testimony had been discovered, too late to be used in the trial, to prove that “ one of the assignors ” “was insolvent at the time he made the assignment, and that he made the same to hinder and delay creditors, and that the same is void;” but plaintiff elected to go into trial, and admitted the facts stated in the affidavit, and the case proceeded: Seld, that at a subsequent trial of the same cause, such former admission of counsel could not be used in evidence, and the action of the court in excluding it operated no surprise to defendant, and constituted no ground for new trial. Plaintiff at most simply admitted that the statements of the affidavit were to be regarded as proved for the purposes of the previous trial. The admission was not in any sense one of record, and stood upon the same ground precisely as if the absent witness had himself been present and testified to the facts stated in the affidavit; and the fact that the admission rvas preserved in a bill of exceptions does not alter the case. 2. Practice—Attachment—Sheriff’s Return—Amendment, when permitted.— Tinder the laws of this State, an amendment of a sheriff’s return upon a writ of attachment may be allowed after judgment and without notice, and it will not be questioned in the absence of anything tending to show an improper exercise of the discretion of the court; and the effect of such amendment will bo to give the party holding by virtue of the attachment the benefit of a regular and valid service of the writ at the time of the original levy, and to make the title which passed by the conveyance of the property under the attachment sale relate back to that sale. 3. Partnership —Assignment —Attachment Creditors.—A partner cannot provide for individual debts due by his copartners, or by a mere stranger without any interest either in the property of the partnership or of either member of the firm, in a conveyance covering his entire property, to the exclusion of his bona fide creditors. As to the attaching creditors, such conveyance must be held to bo utterly fraudulent and void.

Appeal from St. Louis Circuit Court. Defendant at tbe trial asked tbe following instructions which were refused by tbe court: “1. Tbe assignment of Cochran & Pollack to Stewart and Fiske was inoperative to pass any title to tbe land in question. 2. Tbe deed of Stewart and Fiske, acting as assignees of John Cochran in New York, to tbe plaintiff, was inoperative to pass any title to tbe land in question. 4. Tbe admission made by plaintiff’s attorney at a former trial of this cause, and made of record, that ‘ Cochran was insolvent when he made the assignment,’ then and now offered in evidence, and ‘ that the same was made to hinder and delay creditors,’ and ‘ that it was void,’ and ‘plaintiff’s claim under said assignment was void,’ is conclusive against the plaintiff, and he is estopped from claiming any title under said assignment.” The third instruction asked by defendant was given by the court, as follows; ££ 3. Defendants’ title relates back to the 2d of March, 1860, to the date of the attachment and levy at the suit of Robinson & Parsons against Cochran, and the conveyance of Cochran to plaintiff, dated September 1st, 1860, was inoperative to pass any title to the land in question as against the purchasers under the attachment sale.” The first and second instructions asked by defendant and refused by the court comprehend the entire issue involved in the case, and are in brief—1. Did the foreign voluntary assignment of Cochran & Pollack, made in the State of New York, without any compliance with the lex loci rei sitse, pass title to the assignees, Stewart and Fislce, to land in Missouri, belonging to John Cochran? 2. If the first proposition be affirmed, then did the deed of the assignees, Stewart and Fiske, made in New York, ££ under and by virtue of the assignment,” and as such assignees, to the plaintiff, without any pretense of compliance with the lex loci rei silse, which requires the filing of an inventory and bond in the St. Louis Circuit Court, and procuring an order of the same as a prerequisite to their right to sell and convey realty under the assignment, pass any title to plaintiff? I. There are two classes of assignments known in law; 1. Statutory or bankrupt assignments. 2. Voluntary assignments. Both are for the benefit of creditors, and governed by the same rules as it respects real estate. The latter is a substitute for the former. (Bur. on Assign. 5, 16 ; 2 Kent’s Com. 532; 1 Sm. & M. 207, 258; 27 Mo. 528; Story Confl. Laws, § 423 a.) H. The lex loci rei sitse governs all contracts for or conveyances of real estate, and unless such are made in conformity and compliance with the lex loci rei sitse they are invalid. (Story Oonfl. Laws, §§ 435, 427, 428, 555, 363, 364; United States v. Crosby, 7 Cranch, 115; 10 Wheat. 192 ; 9 id. 566 ; 11 id. 465 ; 11 Mo. 318 ; Bur. on Ass. 360-2.') HI. The assignment of Cochran & Pollack is a “voluntary assignment,” within the meaning of “an act concerning voluntary assignments” in force in the State of Missouri at the time said assignment was executed, and as such must conform to'all the provisions of said act as the lex loci rei sitse governing in this case: 1. Because it purports on its face to be an assignment for the benefit of creditors to Stewart and Eiske “ as assignees.” 2. The assignees accept the trust “ as assignees” and “ agree in all respects to conform to the provisions thereof under the law.” 3. It provides for the payment of six classes of preferred creditors with the residue to be returned to John Cochran. 4. The^ assignees, by their deed to plaintiff, declare that they make it as assignees under the assignment, and by virtue of authority under-' the assignment. (Manny v. Logan, 27 Mo. 528 ; 45 Barb. 317 10 Paige, 461, 445-8 ; 7 Gill. & Johns. 480 ; 40 Penn. St. 269 ;. 20 Ohio, 389, 400; 31 Mo. 301.) IV. As a foreign voluntary assignment it was inoperative to-pass title to land in Missouri, and the first instructions asked, by defendants and refused by the court should have been givem with a verdict for defendants. (Bur. on Ass. 360-2; Story’s Confl. Laws, §§ 423 a/428, 435; 3 McLean, 399; 18 Pick. '245-7 ; 10 Wheat. 202 ; 2 Ohio, 488 ; 11 Mo. 314-18 ; 7 Gill. .& Johns. 480 ; 10 Iowa, 282 ; 6 Mo. 302.) V. The second instruction asked by defendants and refused by the court should have been given. The deed of the assignees to plaintiff, made in New York, under proceedings in New York, without compliance with the provisions of the “ act concerning voluntary assignments ” in Missouri, as the lex loci rei sitse, was inoperative and void: 1. Because the assignees took no title, by virtue of the assignment, to the land in question, and had no title to convey to plaintiff. 2. Because the assignees do not pretend to have filed an inventory and given bond to the Circuit Court of St. Louis county, nor procured an order from this Circuit Court for the sale, as an indispensable prerequisite to their right to sell or convey the- premises in dispute; and such compliance with the lex loci rei sitm must appear affirmatively, or no title can pass. (Manny et al. v. Logan, 27 Mo. 528, above referred to; Cleveland v. Boerum et al., 27 Barb. 252; Story’s Confl. Laws, §§ 435, 364-5, 424-7; 1 Pick. 81;. 1 Paige, 220; 11. Am. Jur. 403; 1 Green, New Jer., 326; 16 Abb. Pr. 23— cáse in point.) VI. The assignment is void by the statute of frauds both of New York and Missouri, because it creates a trust to the use of one of the assignors, John Cochran, without providing for the payment of all his debts. (R. C. 1855, p. 802, § 1; Rev. Stat., N. Y., 219-20, § 1 ; Bur. on Ass. 179, 430; 6 Hill, 438 ; 26 Mo. 423 ; 5 Cow. 584; 4 Comst. 211; 13 Wend. 243 ; Robinson v. Robards, 15 Mo. 469 ; Brooks v. Wimer, 20 id. 503.) VH. The assignment is void because it appropriates the individual property of John Cochran to .pay the individual preferred creditors of Pollack, and also of Abbott, to the exclusion of Cochran’s individual judgment creditors. The property conveyed is described as follows: “ All the real estate and personal property, of whatever description and wherever situate, etc., belonging to the said John Cochran and Robert G. Pollack, or either of them, or in and to. which the said John Cochran and Robert G. Pollack, or either of them, have any interest, title, -claim, or demand whatever, to have and to hold the same' in trust, .etc. * * Third, to pay off all the debts due and owing by the said firm of Cochran & Pollack, or the late firm of Abbott, Cochran & Pollack, or either of the members of said firms, to Cornelius Fiske.” Abbott' is not one of the assignors, and no reason appears why his individual debts to Fiske or the other preferred creditors, without limit as to amount, should be paid out of Cochran’s individual property to the exclusion of Cochran’s creditors ; and' the provision is a fraud on Robinson & Parsons, under whom defendants claim as judgment creditor of Cochran. In Smith & Peters v. Howard et al. (20 How. Pr. 121), the court says: “ This fifth clause authorizes and directs both the share of one of the assignors in the joint property and also his individual property, without regard to its value or to the amount of his individual debts, and without regard to the value of the property or to the amount of the individual debts of his co-assignor, to be applied to the payment of the debts of his co-assignor, for which neither he nor his property was liable at law or in equity, equally with his own just debts. It, in short, authorizes the property of an insolvent debtor to be applied in part to the payment of the debts of another person, and for which neither he nor his property is in any wise bound before his own just debts are satisfied. Such a provision, in an instrument like the one under consideration, affords a conclusive presumption of a fraudulent intent on the part of the assignors.” But the case before the court is still stronger. Cochran not only assigns his individual property to pay the individual debts of his co-assignor, Pollack, without limit or amount, but to pay the individual debts of Abbott, who makes no assignment, and the amount of whose individual debts is unknown, and that to the exclusion of Cochran’s own individual judgment creditors. (1 Sandf. Ch. 348; 16 N. Y. 484; 24 id. 509 ; 3 Paige, 167, 517 ; 6 id. 19; 7 id. 26 ; 1 Story’s Eq. Jur. 625.) YIH. The assignment is void because it authorizes the assignees to compromise and compound all debts and claims due either member of the firms, or due by the firm, or either member of either firm, to themselves, the assignees, as preferred creditors— thereby placing it in their power to appropriate the whole assets, on real or fraudulent debts, of Abbott to either of said assignees. (9 Barb. 255 ; 4 Paige, 41; 11 Wend. 187, 203, 208.) IX. The assignment is void because so admitted by plaintiff, and the court erred in excluding the admissions made of record. (1 Grreenl. Ev. § 207; 3 Hill, 215; 1 Mees & W. 508; 42 Barb. 18 ; 5 Denio, 308 ; 6 Hill, 534; 8 Wend. 480.) X. The third instruction asked by defendants and given by the court was correct. Defendants’ title does relate back to the date of the attachment, March 2, 1860. This is five days subsequent to the recording of the assignment in the recorder’s office of St. Louis county, and six months prior to the deed of assignees under the assignment to plaintiff, and to deed of Cochran to plaintiff, made at the same time, leaving the decision of the court pending on the validity of the assignment alone. (23 Mo. 85, 92, 94, 115; 17 Pick. 106.) XI. The sheriff’s return was sufficient—Id certum est, quod cerium reddi potest. (Drake on Att. § 237, and authorities cited; 11 Pick. 341; 5 Me. 453 ; 2 N. H. 137 ; 9 Pick. 308 ; 83 Me. 141; 7 Johns. 217.) XU. The proceedings in attachment and the judgment of the Common Pleas Court, under which defendants purchased, cannot be called in question in this collateral proceeding. (12 Mo. 514, 520, 238; 17 id. 71; 8 id. 264; 33 id. 28; 5 id. 235; 10 Pet. 472; 6 Gray, 520.) K. 1 1 1. The statute of jeofails cured all defects in the sheriff’s return — the foundation of the special judgment of the Common Pleas Court. Rev. Code, 1855, p. 1255, § 19, provides : “When a verdict shall have been rendered in any cause, the judgment therein shall not be stayed, nor shall the judgment upon such verdict, or any judgment upon confession, nihil dicit, or upon failure to answer, nor any judgment upon a writ of inquiry of damages executed thereon, be reversed, impaired, or in any way affected by reason of the following imperfections, omissions, defects, matters, or things, or any of them, in the pleading process, proceedings, or record, namely, etc. * * * Third, for any imperfect or insufficient return of any sheriff or other officer, or that the name of such officer is not set to any return actually made by Mm, etc.” The statute of 1845 did not cure such defects in cases of defaults ; but the statute of 1835 did cure such defects, and the statute of 1855 is like that of 1835. (11 Mo. 359.) XIV. The amendment to the sheriff’s return, nunc pro tunc, was properly allowed by the court, and cannot be impeached in this collateral proceeding. (R. O. 1855, p. 1257, §§ 20, 21; p. 1466, § 11; p. 749, § 62.) In 19 Mo. 157, it was held that an amendment made by a sheriff, long after Ms term of office had expired, was proper. In 19 Mo. 408, the sheriff amended his return by inserting a proper description of land sold by Mm, and name ■of purchaser, five years after his term of office had expired. Ia 4 Ohio, 45, an amendment was allowed after fifteen years, by the administrator of an ex-sheriff, deceased. In 5 Johns. 356, an ex-sheriff was attached twelve years after his term of office had expired, and compelled to amend his return. (2 Sandf. Ch. 163.) A new return was permitted, nunc pro tunc, in Supreme Court. Deputy is still in office, as to process commenced by him before his principal’s term expired. (6 Wend. 224; 20 id. 602; 3 Cow. 89, 95; 9 id. 203 ; Allen on Sh. 78, 202; Gwyne on Sh. 471; Crocker on Sh. § 40; 3 Monroe, 295; 6 Gray, 520 ; 14 Me. 263 ; 4 Hill, 71; 14 Pick. 31; 17 id. 106.) XY. Although the judgment and proceedings may-have been irregular and set aside, yet the title of defendant acquired under sale by sheriff cannot be impaired by any misfeasance or omission of the sheriff. He is an innocent purchaser, and if the wrongful act of the sheriff injures any party, his bondsmen are liable. (8 Wend. 9; 2 E. D. Smith, 474; 15 N.'Y. 617; 3 Scam., EL, 104; 1 McLean, 221; 12 Abb. Pr. 473; Gwyne on Sh. 351; 8 Mo. 264; 12 id. 514, 288 ; 10 Pet. 472.) I. The assignment of all their real and personal property, wherever situated, by Cochran & Pollack, was a valid assignment. It was not void for uncertainty of description. The objection that there is no particular description of the lands granted cannot be maintained. The debtor gives, grants, sells, and conveys to the trustee allhis lands, tenements, and hereditaments. The intention of the parties, therefore, that all the real estate should pass is manifest, and a particular description of the lands conveyed is not required. (Pingree v. Comstock, 18 Pick. 46.) Where a debtor assigned all of his estate, real, personal, and mixed, assignment held not invalid from uncertainty of description. It was a sufficient description of the property to give precise information of the nature and extent by reference and inquiry. (1 Sm. & M. 273-4.) A general .assignment of all a man’s property is not fraudulent per se. (Brashear v. West et al., 7 Pet. 614.) The assignment, although made in New York, yet passed the property in question as against the defendants. 1. They were not creditors resident in Missouri. (Brown v. Knox et al., 6 Mo. 806 ; Bur. on Ass. 370-1.) The question of comity, therefore, which courts often rule in favor of parties resident within the jurisdiction of the forum, does not arise in this case, and the authorities cited do not apply. 2. The assignees complied with the local laws of Missouri. 3. The defendants do not stand in the relation o£ creditors. (Jones et al. v. Lake, 2 Wis. 210; Norton v. Kearney et al., 10 Wis. 443; Bur. on Ass. 597.) The rule of, comity in regard to assignments is limited in its terms to citizens of the State where the provisions of the assignment are sought to be enforced. As against citizens of other States, and especially as against citizens of the State where the assignment was made, the rule apears to uphold, without qualification, that an assignment valid by the laws of the State in which it is made is valid everywhere. (Whipple v. Thayer, 16 Pick. 25 ; Bullock v. Taylor, 16 Pick. 335 ; Daniels v. Willard, id. 36 ; 5 Mas. 174 ; Richardson v. Leavitt, 1 La. An. 430 ; Atwood v. Protection Ins. Co., 14 Cow. 555; Sanderson v. Bradford, 10 N. II. 260; U. S. v. Bank of U. S., 8 Robinson 262; 4 Zabriske, 162; Blake-v. Williams, 6 Pick. 286, explanatory of Ingraham v. Geyer, 13 Mass. 146; Bur. on Ass. 869.) This levy is too vague and uncertain, and is not in conformity with the statute. (R. C. 1855, p. 244, § 22.) H. The attempt to amend the sheriff’s return in 1866 (six years after the plaintiff’s rights had accrued, and five years after a sheriff’s term of office had expired) was wholly abortive. The •amendment does not assist the defendants’ case, and cannot be made to operate to defeat the plaintiff’s title. The plaintiff is shown to be a bona fide purchaser for value, without notice of the attachment sued out by Robinson & Parsons. The amendment indorsed on the attachment was not made by the late sheriff, nor'by any one duly authorized to make it.