Mann v. Huston

Dewey, J. The question as to the liability of Otis H. Dana, as trustee of Huston, must depend upon the effect to be given to the assignment made to Dana of the stock of goods in the store in Boston, and of the goods placed in the hands of Kimball to sell, taken in connection with the acts and declarations of Dana, in reference to the acceptance of the assignment, and giving notice thereof to other parties having prior liens on the goods, and thus effecting a symbolical delivery of the same as between Huston and himself. The property in the store was subject to a mortgage, and also to an attachment. But neither of these liens was of a character to defeat a transfer of the interest of the debtor in the goods. A mortgage, not foreclosed, clearly leaves a right in equity in the mortgagor, which he may transfer. An attachment also leaves the general property in the debtor, and, as has been repeatedly decided, he may make a valid sale of his interest therein, subject of course to the attachment. Denny v. Willard, 11 Pick. 519. Whipple v. Thayer, 16 Pick. 25. Arnold v Brown, 24 Pick. 95. In such cases, no actual delivery is required, but a symbolical delivery is sufficient. The facts stated in the trustee’s answers show sufficient to have been done by the assignee of the interest of Huston, by way of notice, and taking all the possession that could be acquired of property held by an officer under an attachment against the assignor. The case of Whipple v. Thayer, above cited, is an authority to this point. This assignment was therefore effectual, as between the parties, to pass the property of Huston, subject to the two liens. But being an assignment of a character contrary to the spirit of Sts. 1836, c. 238, and 1838, c. 163, it fails to be valid and effectual to enable the assignee to hold the property for the particular distribution provided in the assignment, and subjects him to a trustee process, leaving his eventual liability to depend upon [254] the fact whether there is a surplus after the payment of the debts secured by mortgage and by attachment; and this trustee process must of course, like other attachments, be liable to be defeated by proceedings against the debtor under the insolvent law. It is no valid objection, that it was not physically impossible to have attached the specific goods, which were the subject of the assignment, or that the possession and interest of the trustee, at the time of the service of the trustee process on him, was a qualified one, and liable to be defeated by a foreclosure of the mortgage, or by a levy of execution by the attaching creditor. Parker v. Kinsman, 8 Mass. 486. Burlingame v. Bell, 16 Mass. 318. Swell v. Brown, 5 Pick. 180. The goods in Kimball’s possession passed to the trustee by the assignment from Huston, made before the service of this process, and having subsequently actually come into the possession of the trustee by virtue of such assignment, and having been sold by him under it, he is now to be charged with them. As to the money received from Kimball, a different rule should apply, and the trustee is not to be charged. Trustee charged.