Morgan v. Abbott

C. Allen, J. In the ordinary case of a fraudulent conveyance, which may be avoided by creditors, an assignee in insolvency of the grantor, having the right to elect whether to avoid or affirm it, must distinctly manifest his election to avoid it before he can transfer to a third person his right to contest its validity. Freeland v. Freeland, 102 Mass. 475. Tuite v. Stevens, 98 Mass. 305. The same rule should apply to the case of a preference, or of a conveyance made with a view to prevent the property from' coming to the assignee, which the assignee might avoid, under the Pub. Sts. c. 157, §§ 96, 98. There was nothing in the case to show that the assignee had ever made such election, or even that he was aware of the conveyance to the defendant. For this reason, an action cannot be maintained by the plaintiff in his own name to recover the value of the property in controversy. Exceptions overruled.