First National Bank v. Holmes, Lafferty & Co.

Mr. Justice Sharswood delivered the opinion of the court, October 22d 1877. As to the question discussed by the learned auditor in the court below, of the right of the assignee in this case to intervene and claim the fund, we think the authorities cited by him do not apply. It is true that he stands in the shoes of the assignor as to all transactions before the assignment. He could not set up the fraud of his assignor in any previous transfer or judgment. He does not represent the creditors, who may have superior claims, and he is not armed with their powers: Twelves v. Williams, 3 Whart. 492; Vandyke v. Christ, 7 W. & S. 373. Nor can he appeal from a decree distributing the trust funds in his hands unless he is himself personally aggrieved: Mellon’s Appeal, 8 Casey 121. But he has a perfect right in virtue of the assignment and as a trustee for the creditors to assert his and their right to any property of the assignor which passed by the assignment against any person claiming by subsequent transfer, attachment, judgment, execution or any other lien. This brings us at once to the real ground of this controversy; which was prior in time, the assignment or the attachment ? The learned auditor admitting that the assignment was executed, acknowledged and left for record in the office of the recorder of deeds, before the writ of attachment was put into the hands of the sheriff, was of the opinion that because there was no evidence that it was accepted by the assignee before the service of the writ, the attachment must prevail against the assignment. In this we think that there was manifest error. It will be unnecessary to discuss the general question of what constitutes a sufficient delivery of a deed, or to examine and compare the numerous decisions reported in the books upon this subject. We have a case in this court upon the execution of an assignment for the benefit of creditors, which wras fully considered and is directly in point: Read v. Robinson, 6 W. & S. 329. It was there held that a common-law conveyance, given to an agent for transmission to the grantee, vested the title in the grantee forthwith, though ignorant of the transaction, and that so far as an assignment in trust for the benefit of creditors is concerned the express refusal of the assignee to accept would not invalidate it. Chief Justice Gibson says : “ The Act of 1836 provides that the several courts having jurisdiction shall have power to appoint assignees or [234] trustees ‘ where any sole assignee or trustee shall renounce the trust or refuse to act under or wholly execute the same.’ Now a trust depending for its existence on the assent of the trustee to the grant, in which it is declared, is, when renounced, in the very category defined in the first member of the clause; for it is a rule, to which there is said to be no exception, that there is no renunciation after acceptance and consequently after assent to the grant of the legal estate.” We do not think that it ought to be any longer an open question in this state since Read v. Robinson, and the subsequent cases of Blight v. Schenck, 10 Barr 285, and Johnson v. Herring, 10 Wright 415, that the moment an assignment for the benefit of creditors is placed by the assignor or any one interested in the office of the recorder of deeds of the proper county, and within the prescribed time, the beneficial interest of the creditors, the cestuis que trust, are certainly and completely vested and it is totally immaterial when the assignee accepts the trust or whether he ever accepts it at all. In Blight v. Schenck, Mr. Justice Rogers said: “ That the delivery wus complete Avhen the grantors declared before the proper officers that they signed, sealed and delivered the deed, without saying or doing anything to qualify the delivery, is Avell settled on authority. If the grantee had been present at the time, either personally or by agent, no person would doubt that the title vested; but it is ruled that this Avill not prevent ■ it taking effect as a good deed Garnons v. Knight, 5 B. & C. 671; Lloyd v. Bennett, 8 C. & P. 124. In Johnson v. Herring, Mr. Justice Strong says: “ A trust does not fail for want of a trustee. A delivery of an assignment is good when the instrument has passed out of the control of the assignors with their assent to its taking effect.” “ Delivery, though necessary to give effect to any deed, is an act done after, in common language, the deed has been made or executed. The evidence of it may rest entirely in parol. It is not usually attended Avith any publicity, and if, in case of voluntary assignments, it is necessary to look beyond the deeds themselves to know Avhen they became operative, a wide door is opened for establishing secret trusts, which it was the manifest purpose of the legislature to restrain. Nor is there any hardship in adopting such a construction. The assignment may be placed upon record by the assignors or by any one having a legal or beneficial interest.” Decree reversed at the cost of the appellees, and now it is ordered and decreed that the fund in court, $4103.57, be awarded and paid to the appellant, Simon Marks, as assignee for the benefit of the creditors of Jacob Needy.