IN BE LOWE.
589
In t'e LOWE, Bankrupt. (District (JOU'I't, D. Indiana. 1884.) 1. BANKRUPTCy-FRAUDULENT CONVEYANCE BY BANKRUPT- WIlEN JUDGMENT BECOMES LIEN.
A judgment recovered, defendant having meantime made a fraudulent conveyance of his property, is deemed to have attached at the date of its rendition as if the fraudulent conveyance had never been made. 2. SA}fE- WHO TO BRING SUIT TO ANNUL. An action to annul a fraudulent conveyance by a bankrupt can be brought only in the name of tlJe assignee. Failure, t]lerefore, on the part of a creditol:' to anticipate the assignee in bringing such action cannot be deemed a lack of diligence. S. SAME - PRIORITY OF JUDGMENTS AS LIENS - PARTNERSHIP AND INDIVI))UAL
Under the statutes'of Indiana a judgment against a fraudulent grantor is made a lien, and accordingly he who obtains the first judgment is first in dili· gence, and, except as against innocent purchasers of the fraudulent grantee, first in right. .But this rule is subject to the priorities, respectively, of partnership and individual creditors in and to partnership and indiVidual property. 4. SAME:....A;SSIGNEE REPRESENTS ALL CREDITORS ALIKE.
CLAIMS.
Assignee represents all creditors alike, and his recovery of property wrongfully conveyed must redound to the benefit of all interested, according to their several interests. .
On Exceptions to Master's Report. Taylor, Rand d Taylor, for themselves. McMaster d Boice, for assignee. WdODS, J. The facts shown by the report of the master are to the effect that on the second day of January. 1877. Taylor, Rand & Taylor recovered, in the superior court of Marion county. a judgment against Nahum H. Lowe. Lowe owned real estate in Marion county which, before the rendition of that judgment. he had conveyed to another with intent to cheat his creditors, the grantee not being a faith purchaser. After the rendition oftbis judgment Lowe was adjudged a bankrupt. The assignee 'afterwards obtained a decree against the grantee in said conveyance, declaring the same void; and Taylor, Rand & Taylor having presente,d a 'claim tha.t {'.onstituted a lien upon the property from the date of rendition, the court ordered that the assignee sell the property and report the proceeds, and that all liens be transferred to the fund. Upon these facts the master reports that Taylor, Rand & Taylor have a lieti 3lfclaimed which should be first satisfied. The assignee insists that this is not so; that the did not constitute a lien so long s,s the title remained in the fraudulent grantee; .aQd that the decree setting aside that sale, rendered at the suit of the assignee, inured to the benetit of the estate-that is to say, to the benefit of all creditors This conclusion is based mainly upon the proposition thattheassigtlee. having been first to institute suit to set the fraudulentconveyaDce aside, became entitled, by virtue of his superior diligenc6.to prefer-
59:0
FE:QERAL R1!lP<»tTER.
ence over a judgment creditor who had failed to bring any such suit. n seems clear, under the Indiana Statutes,. (Rev. St. 1881, §§ 608, 752,) that the judgment of Taylor, Rand & Taylor became at once, upon rendition, a lien upon the real estate in question. Section 608 tp.atsuchjudgments "shall be a lien upon real estate and chattelB real, liable to execution;" and by section 752 it is enacted that Hlands 'fraudulently conveyed with intent to delay or defraud creditors" shall be liable to all judgments and attachments, and to be sold on execution against the debtor. It bas been determined, too, that the sale upon execution may precede any suit or proceedings to set aside or annul 'the fraudulent conveyance. Frakes v. Brown, 2 Black!. 295. It is not deemed necessal'ynow to determine whether or: not there may be a race of diligence between the owners of diffe,rent judgments in such a case, or or not, when thecpnveyance has been set. aside .at the suit .9£ any of them, .the lien oieach judgment mnst be deemed to have attached at the dlite of its' as if the fraudulent conveyance had never been rilade. The latter would seem to be the logical conclusion. The complaint to set the conveyance aside must aver the facts which snow'thatthe property is subject to the lien of judgments already rendered' against' the frau:dulent arid the complainant cannot well disclaim or escape the result; certainly not on the pretense that he had, in ignorance of the. facts or of the legal CQIisflquence, put forth effort or incurred costs whioh should not be turned. to the benefit of another. Indeed, the very doctrine of superior diligence would seeut tQ·leadto.,thesll.me conclul3jon, when properly applied· . ,Undel1 the etatute a judgment against the fraudulent grantor is m8idea lien, and he who obtains the first. judgment is first in dIligence,and thereafter, except as against innocentpurohasersof the fraudulent grantee, should be deemed to be first ill right, unless by. Mtual neglect oral>andonmerit of his by other af"ihmativo\loct, he lose hia preference. lfthia is not ao, a judgment creditor, who delayed fOl;a day in ptocuring the issue and levy of an ,exElcp,tiou, or in commencing proceedings to annul the fraudulent transfer, mightnndhimself postponed to another, who had no judgment, but,; in the mean time, had brought a single suit (as may be .done in this state) to obtain a judgment and to avoid the fraudulent deed. On. this subject see Hardy v. Mitchell,6:l Ind. Hanna v. iAcbkeri,S4 Ind. 411. But, however ,this may be,r think it quite clear that proposed cannot apply when the fraudulent cQnveyancehasbeen annulled at the iustance,of, the aSi,\ignee in bankruptcy oftbeJraudulent grantor. By express provision of the bankrupt law, 'allprope:dY of, the bankrupt, conveyed in of his creditors, is, byvirtUElo£' q,dj.udication, andbytbe l,\ppointment of an assignee, .vested in tlle assignee, to whom. llolso the power and authority are ,given "to manage, dispose of; sue for, and recover all his property or e.s.tate, or persoual,dElbts or effects, and to defend all suits. at law
UNITED STATES .V. RUS.&.li:LL.
or in equity pending agf!-inst the bankrupt/', 14 St. 52"5 ·· illgly it ha's been held; and i3 well settled, that after the appointment of an assignee in bankruptcy, an actioit' by a creditor to set aaidell. fraud. ulent conveyance of the bankrupt or to reach, in any way, property fraudulently transferred, cannot be maintained, and that ,the' ,J;eml')dy must be had in a suit or action bJ or jn the name al:!signee. Glenny U. S. 20; Trimble v. Woodhead, 102. U· .s. 647; Moyer v. Dewey, 103 U. S. 801. The hankrupt law, moreover,pxo-. vides for the protection of existing liens upon all properby,vestlld in the assignee. It follows clearly that. the assignee is the-representa. tive of all creditors alike, andif he obtains a decree for the fBcovery of property fraudulently conveyed, it is for the benefit .of a.llinterested, according to their respective interests. There is certainly no room for the proposition that the judgment creditor, by failing to sue in his own name, (when forbidden so to do by the law which gave the assignee the right to sue,) lost any right which he had, and. by superior diligence might have saved. of Taylor, Another objection to the report is that the Rand & Taylor is not in fact the ol<;lest, and therefore not entitledjo preference. It is in fact not the. old.est unsatisfied judgment; but the older judgments againtlt Lowe wer.e all rendered, against himtts· one of a firm, and in favor of thejudgment of Taylor,Rand & Taylor is for the indiv;idual debt of and therefore properly first .payable out of this fund which.WAS de' rived wholly from Lowe's individllalproperty. Hardy, y. Mitchell, supra; Weyerv.Thornburgh, 15 lnd. 1,25; Dean v. Phillip$; 17 IUd. 406; Bond v. Nat'e, 62 Ind. {)05 j Nat. Bankv. Locke l 8\! Ind428. Judgment liens, except iJ;t Indiana, as againat innocelJ,t purchasers, subject to pri9r equities in the property. Freem. Judgrn. '§§ 856, 357; Glidewell v. Spaugh, 26 Ind. 819; Jone.s v. Rhoa.d8, H:Lnd. 510; Huffman v. Copeland, 86 Ind; 224, and case8 cited. ': It follows that the remainder .due upon the judgment . 'of Taylpt, Rand & Taylor should be first paid. So ordered·.
UNITED STATES V.
(District Oourt,
2.
FALSE ACCOUNT.
In an indictment for the falsillcation of an account, other false accounts made by the defendant at about the.same time may be introduced inevidehce ....; . for the Pnrpose of ,proving-guilty knowledge. .' . . , ..
An actually paid
items for ser'vices not actually rendered or nioneysnot 18 a.false aCllount. .. . 1, :.;,S . ; : . ' !