Reddy v. Raymond

Morton, J. The plaintiff, besides being the assignee named in the deed of assignment, was a creditor of the assignor, and his signature to the deed operated not only to create the relation of assignor and assignee between the debtor and himself, but also constituted an acceptance by him as a creditor of the provisions of the deed in accordance with the terms thereof. Hastings v. Baldwin, 17 Mass. 552. By his signature the deed of assignment became valid and effectual to the extent at least of the plaintiff’s claim as a creditor, and the plaintiff having taken possession under it of the property before the attachment had a title to the goods superior to that of any creditor seeking to attach them in specie. The interest of the debtor in the goods could have been reached by the trustee process, but the title to the goods themselves having vested in the assignee they were no longer attachable by a creditor of the debtor as the goods of the latter. Fall River Iron Works v. Croade, 15 Pick. 11. The assignment purported to be for the benefit of creditors, not in fraud of them, and the general finding in the plaintiff’s favor concludes the question as one of fact. It is true that the assignment could have been avoided by proceedings in bankruptcy seasonably begun or by attaching creditors before it had been fully executed; not however because it was necessarily in fraud of creditors, but in the former case because it is the policy of the law to take the distribution of bankrupt estates into its own hands, and in the latter case because until executed by one or more creditors the deed was ineffectual and the property remained the property of the debtor and was attachable as such. This view of the effect of the assignment renders it unneces [370] sary to consider whether the attachment was dissolved by reason of the failure of the attaching creditor to comply with the demand made for the payment of the mortgage. Judgment affirmed.