716,
1
FEDERAL ItEPORTER,
vol. 43. ale 1890.)
VAN WiOK· 'V. READ et
(Owcuit Court, N.D.FZortda.. 1.
August,
An'8ssignment for the benellt 'of creditors, made by one citizen of New York to and valid under the laws of will pass title to a note and mortgage on Florida. · that an assignor who is <Justly indebted to his wife and children makes them ,pre,ferrell crtlditors will not invalidate the assignment. ,l{':' , . ," . ,
FOR BENEFIT OF CREDITORS-VAJ,IDITy-LEXLocr.
2.SAMIll"""PltEFERENCES-RELATrVEs·
, In Bill to mortgage. J08cph;R. Parrott, for complainant. H, W.,. (Jo(;krell Son, for .: defendaqtll· . ,",'. '; "
.
"
The controversybeforethe court has arisen on the followof facts: Jqhn, II. Boyntpn, a citizen of the state of New in thelum.her business, and made advancements to J. C. district\ !ta,kin,g therefor his note for $4,000, dated June 'pll:yable fl,t the, office. ofJ()hn H ..Boyntonin New York, an,d a,f'ter date. this npte,on the 23d day of June, 1879; Joseph C. Read anq A. Read, his executed their rpqrtg.as:EI upp.n(ll tract oU/loHd.on Amelia island, in the county of Nassau, anc:l,thy;:!>uilqi,ngs as the "Amelia Steam Saw-Mill of ;Florida." The note and mortgage are I of eyen date, and ,wItS r:ecorded}une 27,' 1&79, Thereafter, to-wit, on the . 18th of <August, John H. Boynton, having bel;JQrne insolvent, exin its purpose, but with certain references t9 fll,voreqjcreditc;>rs,to S,aD;l\lel Van Wyck, with instruction and power to, assets; sq. assigned into cash,and to pay, among oth.' erii, preferred debts: '1'0 Louisa B. Boynton, $26,808.051 to Isabel D. Boynton,$1,080i to $5,536. After these and otper preferred creditors ",ere was:tlPpropriated to pay the remainder of the ag.. s.ignor's debts.a.ll,<:lliabp*es., was rel:lorded on.the 28th as appellrs Jroman ex:emplification, the .recordput ill the noteat:ld mortgage beforedf;lsCtlbed passed to. the sllid VanWyck by virtue of said assignment, the note bearing also the followit:lg,:in,dqrsement:;,:',l?ay SamI., VanWyck.8S$ignee, or order," signed BC;>YNTO;N,." Among other 'Qreditorsof John H. BoyntpIl:;\rer.e Hunter,;T. H. Prescott, Lettie Miller, and Wilson:l\nd rffiidents of district, wpo held claimsJor different amounts.. Op. the of August, 1884,tpey had of, issued thereon, servingthe same on Joseph: C. Read and Mirna A. Read, the debtors ,of BoyatpJl-, beforementi0ued., ' as: by, the,n()te Ilnq.,mqrtgllg-ebef()re descrlbed., The.se proceedings went regularly to judgment in"thestate courts, and Joseph C. Read has been left until now in the possession of the mortgaged premises. ing
VAN .WYCK ". READ.
717
The bill is filed by Van Wyck, the assignee, to enforce the foreclosure of the mortgage, and to assert the superiority of his claims as assignee of the note and mortgage to the claims of the general creditors who have obtained judgments in attachments. The judgment creditors by way of defense insist that the assignment to Van Wyck was never executed, as set out in the bill; that after the date of its alleged executioQ Boynton, the assignor, remained in control of the property assigned, which they insist is a badge of fraud; that the assignment is illegal, null, and void, and not in compliance with the laws of the state of New York; and that the original bill is not prosecuted in the interest of the plaintiff, but in the interest of Daniel G. Ambler. These defenses are set up by way of cross-bill, and the defendants pray that they may be subrogated to the rights of Boynton, and that the proceeds ot' the' note and mortgage be appropriated to payoff and discharge the liens of their judgments orattachments. The plaintiff proved by the depositions of Frederick C. Boynton, Theodosia Boynton, Isabel Boynton, and John H.Boynton himself the nature of the debts to secure which the preferences in the assignment were made. It appears that Frederick C. Boynton ,was the SOlI of John H. Boynton; that he was his father's clerk, and, had an unpaid account for salary for about $1,000. He loaned his father a produce exchange ticket in 1883, but the evidence is wholly silent as to the value of suoh loan. He had made no loan to his father other than the undrawn salary. He maintained no separate establishment· from his father , has lived with his father all the while, and it is impossible for him to estimate how much has been expended by his father in his maintenance since 1876. John H; Boynton testifies to the claim of Mrs. S. B. Boynton, his mother. She loaned him money and bonds to the amount of $27 ,000. The claim of Theodosia Boynton he testifies was $10,000 in cash from the sale of her house in Forty-Ninth street, and $10,000 in Houston & Texas bonds; All of this belonged to her. The claim of Isabella D. Boynton was for railroad bonds which he had borrowed from her to use as collateral. He corroborates the statement of Frederick C. Boynton as to his claims. His mother, he received her money from:his father's estate, his wife from her father's estate, Isabella's was the acccumulation of birthday gifts, her mother giving her $100 on each birthday. In that way she accumulated what she had. She had passed 17 birthdays. She loaned her father a St. Paul, Minneapolis & Omaha bond for $I ,000. She has 110 separate establishment' from her father's, and has always been maintained by him; is unable to say what has been disbursed in her maintenance. Mrs. Theodosia Boynton teE'tifies that she gave her husband money and securities at different dates. Whenever her income came in she gave it to him. She also gave him the proceeds of her hbuse on :B'orty-Ninth street. The plaintiffs in the cross·bill have not furnished any evidence which is sufficient to meet or avoid the testimony of the witnesses for the plainant in the original bill as to the validity of the debts to prefer ,which the assignment was, .made. While it is ,true that several ofthebenefi..
118'
FEDER:&L: 'REPORTER,
43.
oiarieS:loltithiSJ B15signmentlf'ereNlatives :of \be 8sisigndr;' a' circuilistancEI alwl1ysimpcmtaintto be'consideredJin caaeQofthis character,: the testimoriy is iplairi7/unomritradictediandl positive that the husband and father was indllbt6d:1;Q, the ·wifeand children.. '" ' . ' . : ;only' question then <remaining, depends for itsdecisioll u pOll the validHyh ,of,ahe, :assignment. diiis in our opinion valid by the law of New'Xork, land a contract l;'"aliqrstrthe place where: H is entered into is, as: a .generlil !Eule, valid in! all.; other places, and' this rule extends to aU . asSignmehts; Qf property.· It, is besides a general rille, ,with few excep.tions, that in another state the decision is to by. the lea: wcia$ rights acquired and the obligations Guilla'flderv. Howdl,35 N. ·ufiil;,.Moot6V. WilleU,35 Biu'bol 663; iHa'l1ford v. Paine, 32 Vt. 442. Tbe,propemy,tl'ansferred by thisfulsignnieritwas:the mortgage now sought to be foreclosed, and the transfer was made in New York between reg.. idents·df. that-state. rfhisque$lUoQhasbeen deoided favorably to the comp1&inrirltdn BacOflv.Home,;,bythesupreme court ofPeimsylvania, Atl.Rep. 794 ·. ,The case seems preoisely in point. It was ,held· that an assignment >1orcl'editors made in New York in con.. formitywith' mhe: 1aW8 of that state 'passes thetitIe to prbperty in sy}vania'8s"between residents:of New York, although has never ,been recorded. inPentisylvanill' in accordance wi ththePennsy1vania laws·. ; Tbe':ample:notes.to,:this case by Mr. Desty tlm')'W much light on thesubject,:;but1'urnish nothingJf,o change the rule above stated. The power of. a-state i to .regulate the' transfer of all property .in its territory with cer,tainex:ceptions, ,is well:established. ConB. Laws, par. 390,.Gmm..v.,VanBuskirk,7Walh,139. ·In the case at bar the proceedingofgarrlishritent was nothad;until AU!1;ust 24 anq25;and in November and December; 1884. The'assignment was made onth.e18th of August, 1884,'was',recorded in New Ydrk:the same rlaYi anqw8s recorded in Florida onhAugust 18th·. . It does: notap,pear thatthis' record was sary. 'A: , wcM!tgagee ,of; land: in:, hll s no Mgal.estate in the land. McMnhonvi,RU88ell, 17 Fla. '698.: ''the'' nlOrtgllge'\\'as merely It security for the:payment of transfer oftbe note carried the mortgage:with:it.:i;i: ".': .,; ·. "iTheaontroversy depends l wehav.e seen, on .the: validity ofits transfer with,the, note .by the iTheBituB of: the property transferred wasm,;NewC¥cirk, and, 'nt: the first attachment 'Boynton had parted entire intereSt lin ;it. ! Assumir.g' ,the, aSfiignmE'nt to be valid, on:'itsiexecution and delivery 'the makero'fthe note and mortgage became; indebted to ,the. and no had the .assignor thingl8ubject ,to attach men!t. Ii Theassignment With -preferences nppears to: beJikewise i validdnF:1orida'i:1.l:lolbrook v.' Allen, 4, 87. The assignments of fraud made in the several cross-bills Are not sug.. . .r,oof,and,!the billl)Elgative their ChargaSi;i',;./Fh£ire amf.,.dt 'isl:trtia,"four, judgments;in attachment, 'all poillt..dating,the assignment, a1l0btained on proceedings taken SUbsequent to its>execntion. cTherlgbt.of Vari or histlansfereej if it bas been
PEOH.HEliMER ft. B.AUM; ·
.transferred, tQ foieclose in: accordance 'with :the prayer 'oflthe bill, be allowed, and ,a ,decree, w:ithcosts, so entered. In view of the general appearance' of.. the case,' ,the court will direct, thattbecosts be paid' by Van Wyck.: "
will
FECHHEnl'ER
et'al; ,
(CireuU Court, 8. ,D. Georl1£<ijW. Dl July, 1890,) "
, Ulidet Code Ga, § 1958. which ,proyides may prefer 9,Ile creditQr to is given' by an debtot toone tif his 'creditors ..andia followi1dinl.mediaJil!ly by otq.er mQlrt;gBges whichiu Elf. on all Ii general creditors, the, tlt;ilt, mortgage not coustltutepart of the'll.88ignnient.Dis'tingulShing ,wntte v. OotzhaUS61'l,& Sup. ' Ct. Rep. 800. , , ' , , ; Fon BBlfEFIT
CQ;NBTIT'l1'flls-:.MoRTGAGB.,
, . , ,
fua 'credifur, of cdJJsisung, of choses ,inaction, in 'order to'seciure such t\leof , ' ,creditor, a generaJ ",ssigqmeut Il.SAillli. ". ' , " , ':"'"'' , ',' " , A'mor:tgllge'wbich provideilthat the lJurph1s, after paying the' mortgage debt, t!Ie mortg&lf0r,'1J for " F,bllowmg'Coggilil8 v. 73 Ga. 4 1 4 . , :
'5: FRAUDULENT CONVEYkNCE",:,WB'AT
" Ain for, which ianot aCcompanied by. sWorn is void. ' schedule and statement of ,assets all required by Act Ga. ',' " "
ANri VALIDM:'"
,',: ' : , '
,
'a SAME-Rrtcl>RIlli;rci,·" ,
',1 Tile proTilrionin & mortgage that ,the, surplUS after satitdaetioD: of the deb't'811a11 ,be tl!-emortgagor qoes mortgage fraupulept. Fpllowing 'Catlo'Wau'l. Bank. 54 Ga. 441. ,
The fact that an agreement by a debtor to preferI' creditor in ca&eof-in, solvency is not recorded does not render it fraudulent, since such an agreement ill loy; law to be reCorded. and'its,record would therefore' not cOnstitute v.,She}'mafl,. l05U.S. 100. " ,, .
'
',
7" sl1it tOeet wm'i>e , entitlea to' he in his suit, appeats tha,l hi!, , .; ignora.tlce :of, tbe,:agneement'bau9llcFhul1 to, give the debtor ereditii ' , :8. ;ATTOBWY, ANDCLIE1'I'l'-;-COllD'ENSiTION.....MoBTGAGE-EqUI'Iit' iPRACTlCB. Where the forl)Closure qta mortgage, provides for 10 pe,rcent. attorneys' fee,sble" in Ii su(t iil wlaich a rl¥l81V'er isappointe!l, tp sell the property for tIre' enefit' of 'a11 tIle mortgagor is entitled to' recover such alitoIll1eySl fees out of the prodEleds; " \J: , · ' , , ·
Wqe,re, a has, by +S111t',brougb,t i\itothe cUlltody of the conrt property pf his <111l:>Wr,Whichhad '()E¥ln appFopriatejl certain creditors to the e:r;clp.!lion of tbe'others,,and wb,ii\h the pourt distributes '[orthe, be,D,ell,t of all the crllditor!l. the' attorneys' of such' dtemwrare tmti1ired'to compensat'ion for tbeir services out of ,the; 'Pitoceedll of suehproperty. Following BaUrooo' 'U(), v.' pettU8. 5 Sup;' Ctl. ll.ep··387;.
:,:,:
, i
,InEquity.", . Patiersonft!t:HQdges, ,Mtimm ,ErWin, and 0; II. Denmark,' Adams «'Addmk'ahd 'HiU -& 'Hurris, for " ,. '" .... . ,. , " j
c,! f.
":' ./':
L
'JPEl.
outlined in the decision'6f'flht injunCtioIi, and ;t.eportedin