In re the Assignment of Lewis

J. F. Daly, J. The petitioners claim that taxes levied on the real estate of the assignor under State laws have a preference at common law, as debts due the State, and .that this preference should be enforced by the courts on the application of any party interested in the assignment, in the same manner and to the same extent as the courts of bankruptcy enforce the statutory preference of taxes in the distribution of estates under the bankruptcy laws (In re Moller, 8 Ben. 526; S. C. on appeal, 14 Blatchf. 214). The distinction between the cases of distribution under the banki-uptey laws, and by the assignee for the benefit of creditors, is marked. In the one case the distribution is made by the law. taking all discretion in the matter away from the debtor : in the other case, the distribution is made according to the will of the debtor, as expressed in the deed of assignment. Where the law takes the distribution of estates into its own hands, the order of such distribution is usually fixed by statute: as in cases of administration (2 Rev. Stat. 87), and bankruptcy, (U. S. Rev. Stat. 5101), and in the absence of statutory directions, courts in analogous cases will enforce the common law preference, which no doubt exists, in favor of taxes over debts due to private persons (Matter of Columbian Ins. Co., 3 Abb. Ct. App. Dec. 243; Orem v. Wrightson, Md. Ct. App., Reporter, Jan. 1880; Murray v. Ridley, 3 Harr. & McH. 171). The case of general assignments bears no analogy to distributions of estates undertaken by the law (Nicholson v. Leavitt, 6 N. Y. 510, 519). The assignee is not the officer of the court [223] nor the agent of the law, but is the representative of the debtor, deriving'his powers from the trust deed. The debtor has the same power to make preferences in the deed, as he had, before executing it, to make payment of certain debts (See cases collected in Keiley’s Insolvent Assignments, 3d ed. 144, &e.) The courts have no power to insert preferences into the instrument. As the assignment is an express direction as to the mode of distribution, there is no necessity to resort elsewhere, not even to cases apparently analogous, to ascertain how or in what order it should be made. Unless preferred by the debtor, the State shares with private creditors in the distribution by the assignee. This view does not affect the rights of priority of the State to payment of taxes out of the particular real estate on which the tax is imposed. The order should be affirmed, with costs. Charles P. Daly, Ch. J., and Larremore, J., concurred. Order affirmed, with costs.