Hanford v. Paine

Redfield, Ch. J. The general question involved in this case is one of a good deal of practical importance, and one in regard to which there is obviously more or less conflict among the decisions in other States, — 452 — There are some points in regard to which we think there is no just ground of controversy. We see no good reason why any different rule should be applied to this case, because of the extent and variety of the property involved. It would be difficult, if not impossible to define a rule upon this subject resting upon any such basis. All would agree, we believe, that if the assignor had been a resident of the State, at the date of the assignment, and had gone out of the State for the purpose of making the assignment, or, being temporarily out of the State, had made the assignment, in either case it must still be governed by the requirements of our law in relation to such contracts. Any other view would operate as a virtual fraud upon the law. But if the assignor has a bona fide residence out of the State, we do not perceive why his contract of assignment may not with the same propriety be held to convey his interest in this mercan-: tile partnership as in any single article of personal property within the State, or a chose in action owing from one resident here. We feel that there can be no question in regard to the right of the legislature to restrict and limit the freedom of alienation of personal chattels or of choses in action within the State, or to prohibit it altogether, or even to provide for its escheat to the State, after the decease of the present proprietors, unless restricted by constitutional limitations. And by parity of reason the legislature must have the right to prescribe any formalities in the conveyance of personal property, which they may deem expedient, and to make them universal in their application to all who hold property here, as well those residing without as within the State. There can be no doubt of the power of the legislature in this respect. That was never questioned. But it has long been the policy of commercial States not to embarrass the free transmission of the title to personal property, And it has been very justly considered as discourteous and illiberal policy in one State to abridge and fetter the operation of foreign contracts within its limits, or to refuse to enforce them by suits maintained in its courts, or to embarrass foreign owners of personal estate within-its limits, in the free enjoyment of its beneficial use, or its ready and unrestricted conveyance. Hence poqrts have long felt a reluctance to establish any restrictions of — 453 — iliis character by means of construction merely. But where such i s the fair and reasonable interpretation of a statute, the courts can feel no delicacy and no i eludan ce in the matter. I. The great and leading question made in the argument of this case is, whether the statute of 1852, in relation to assignments for the benefit of creditors, was meant to apply to all such contracts intended to operate upon personal property within the State wherever such assignments might be executed. It must be very obvious to any one examining the special provisions of the statute of 1852, that it could only have been intended primarily to apply to cases where the assignor resided within the State, sand where the assignment was to be here carried into effect by the assignees. By the third section it is made the duty, both of the assignor and the assignee, to file in the office of the county clerk, u in the county where the assignment is made, and the property assigned is situated, a true copy of- the assignment and of the inventory,” etc. By the sixth and seventh sections, provision is made for compelling the assignee to give account of his administration of the trust by proceedings before “ the chancellor of the circuit.” None of the provisions in these sections, which constitute one third of the statute, could have any possible application to an assignment made out of the State. The statute without these provisions would be a very lame and imperfect affair. And the fifth section, which provides for the assignee filing with the clerk of such county” a “ copy of the settlement of his trust account,” must also be regarded as having exclusive reference to transactions conducted within the State. It iá, therefore, sufficiently obvious that this statute could not have been intended primarily to apply to assignments made, and to be 'carried into effect without the State. It seems to me as obvious that this statute was not intended to apply to assignments made out of the State, as if the statute had in-terms provided that all assignments hereafter made in this State, etc. - But it may still be urged that this statute must be regarded as applicable to all property within the State, personal, as well as real. But it seems to us that as no such thing is expressed in the act, it would be contrary to the general policy of commercial States to adopt such a view by construction merely. The inclin-' — 454 — ation of courts and the general policy of the law is certainly otherwise. In the law, personalty is generally regarded as having no situs. Its title, mode of transfer, and other incidents connected with its use and transmission, are regulated according to the law of the place of the domicil of the owner. This is confessedly true in regard to the requisite formalities in the execution of a will of personalty, although essentially departing from the requirements of the law of the State where such property happens to be situated at the time of the decease of the owner. It is the law of the place of the domicil of the owner which must control these incidents, as to the operation of wills upon personal estate, and also the distribution of intestate estates, according to the general rules of international comity among civilized and commercial States. There can be no doubt of the right of any State to interfere in these matters, even to the extent of prohibiting the operation of foreign wills within its limits. But that is seldom attempted in modern days. But it is claimed that in regard to the distribution of one’s effects (while living) among his creditors, a different rule to some extent has prevailed. This may be true perhaps. One State is not bound to send property, found within its limits, abroad to be administered upon, either by assignees, whether voluntary or compulsory, or by personal representatives after death, so long as there are creditors within the State who would thereby be deprived of an equal share with the creditors in the place of the domicil of the debtor. This is the express rule of this State in regard to insolvent estates of deceased persons domiciled abroad. And we see no reason why, upon general principles, we might not expect the same rule to obtain in regard to the effects of living insolvents. But there are, no doubt, many considerations to be taken into the account in determining such a question. It has been held that in giving effect to an assignment for the benefit of creditors made out of the State, we act upon considerations of comity merely. This must undoubtedly be received with some qualification. It is certainly not true that we could regard the binding effect of such an assignment, in regard to personal property remaining within the State, as dependent upon the ques455 ‘¿ion, whether the State where such assignment was made would give effect to an assignment made in this State, as to properly in that State. That would certainly be a very narrow and unmanly view of the subject. For this might result merely from a misconception of the law by the courts iff that State, and a misapplication of the principles, which, according to the generally admitted doctrines of commercial law, ought to have controlled the question. The view proposed would then amount to nothing less than the law of retaliation, the lex talionis; Shaw, Ch. J., 19 Pick. 107. The only ground which could fairly justify the courts of one State in refusing to recognize such contracts made in other States, by persons domiciled there, as matter of comity, must have reference either to a general want of confidence in the mode in which the general principles of commercial law are there administered, which is but ¿mother name for the character and standing of such State in regard to civilization and Christianity, or it must have reference to the m¿inner in which we suppose our citizens would be affected by sending them into the forum of that State, for the recovery of their claims against the assignor in the particular case. We think this State or any Christian State might perhaps fairly be justified in refusing- to send its .own citizens into Japan or China to obtain payment of a claim against a person domiciled there, find who had there made an assignment of his effects, provided these citizens could obtain payment of such claims, through the attachment and sale of the property of such debtor, remaining in the State where the creditor resided. And if any of the American States make, by their general laws, such a discrimination in favor of tlicir own citizens in the distribution of the effects of insolvents, either living or dead, as to amount to a virtual denial of justice or of equality of right in such distribution to our citizens, we might fairly claim to apply such property of the insolvent as was found in this State, to the payment of such debts as were owing to our citizens; Beyond this it does not occur to me that, upon principle, we could fairly he justified in making any discrimination in favor of one of our citizens. And neither of these grounds would ordinarily find aüy — 456 — basis for their application, in regard to assignments, made in any of the American States. The ground upon which courts in one State have refused to give effect to involuntary assignments, made in foreign States under the insolvent and bankrupt laws of such countries, is sufficiently justified upon the ground that such assignments are affected by the judgment of the courts of such foreign States, which can of course have no effect, either upon persons or property, in other States, of which they have no jurisdiction, unless it is effected by transferring such property or persons into the States where such courts exist, and thus giving a sort of ex post facto jurisdictiqn. This is sometimes done by persons abroad coming into the insolvent court, and presenting their claims, and accepting a dividend upon them with the general creditors. This makes the discharge a bar to such claims* although the court would have had no jurisdiction over them if they had not been voluntarily presented; Peck v. Hibbard, 26 Vt. 698. As to the general principle that involuntary assignments under foreign bankrupt and insolvent laws are not binding upon persons or property situated without the States where made, the cases of Harrison v. Sterry, 5 Cranch. 289 ; Hoyt v. Thompson, 1 Selden 320 ; Britton v. Valentine, 1 Curtis 168 ; and 2 Kent’s Com. 405-408, and the cases cited by the learned commentator, will be sufficient. The doctrine is most unquestionable, and rests upon grounds entirely aside of those affecting voluntary assignments, that is, upon the want of jurisdiction in the courts making the judgment of compulsory assignment. In regard to general voluntary assignments for the benefit of creditors, it seems to be an admitted rule, that if according to the laws of tire place of the domicil of the assignor, they will have the effect to pass all the personal property of the assignor, wherever situated, unless their operation is limited or restrained by some local law or policy of the State where the same is situated; Story’s Conflict of Laws, sec. 423 (a.) ; BurriE on Assignments, 363 et seg. In the second edition of Burrill on Assignments, a thorough and exhaustive digest and analysis of the cases upon this subject Will be fo.und, pp. 363-372. A careful review of the cases shows — 457 — very clearly that the preponderance of authority is greatly in favor of the general view above stated. This examination could scarcely fail to bring all fair minded persons to the same conclusion with this careful and painstaking writef. This author says that in all the cases where a voluntary assignment, valid where made and operative by the laws of the place of the domicil of the owner to transfer personal property everywhere, has not been held to have that effect, as is the fact in some few of the American States, it has been only in favor of the citizens of the States where such decisions have been made. “ As against citizens of other States and especially as against citizens of the State where the assignment was made, the rule appears to hold without qualification, that an assignment, valid by the laws of the State in which it is made, is valid everywhere.” This limitation of the exception would narrow its operation so as not to include the plaintiff’s claim in the present case, he being not only not a resident of this State, but being a resident of the State of New York, where the assignment was made, and the assignor domiciled at the time, and by the laws of which State it is entirely valid to transfer all the personal property of the assignor wherever situated. We do not desire, however, to have it understood that we are willing to place our decision upon any such narrow ground. We regard that class of cases which have assumed this ground in regard to the citizens of the other American States^ by way of a narrow and specific retaliation, or what is still more ungenerous, for the purpose of giving their own citizens an unequal advantage, as resting upon no enlarged and liberal notions, either of national or general policy. This is the view maintained by Shaw, Ch. J., in Means v. Hapgood and Trustee, 19 Pick. 105-107. It is there said “ courts of law are competent to take notice of general considerations of comity; but it is not, we think, within their province to attempt to enforce a precise system of retaliation, by adopting the precise rules against their citizens, which their courts adopt against ours.” The very least which could fairly justify our courts in discriminating in favor of our own citizens, would be the certainty that the courts of the State, where the assignment was made, would do so in regard to their own — 458 — citizens, and thus deprive our citizens of that equal justice, which they are entitled to demand and to expect in all civilized and commercial States. One may be compelled to do this as to bar-* barous and pagan States. We trust Vermont will only do it, in the strictest sense, or by way of necessary self defence. The principle of the leading case in Massachusetts, Ingraham v. Geyer, 13 Mass. 146, where the rule of discrimination in favor of their own citizens, as to voluntary assignments of insol-* vents made abroad, is first attempted to be maintained, is virtually condemned by the same court in the case of Means v. Hapgood, 19 Pick. 107, when it came under consideration as the decision of a neighboring State. Shaw, Ch. J., there says, that the case of Fox v. Adams, 5 Greenleaf 245, “ has been repeatedly doubted in this State.” And this last case was decided expressly upon the authority of Ingraham v. Geyer, and is in principle the same. All the other cases in the American States, where voluntary assignments made in other States have been held inoperative against the attachment of personal property by citizens of their own States, have gone upon the narrow and illiberal policy of giving their own citizens an advantage over those of other States. That has sometimes been alluded to by our own courts, by way of argument or illustration, but it has not obtained countenance of late, and certainly ought not to be encouraged, unless in strict self defence. The authority in the opposite direction is of far greater amount, besides resting upon grounds which commend themselves both to our sense of justice and consistency with principle; Caskie v. Webster, 2 Wallace, Jr. 131; Law v. Mills, 18 Penn. St. 185; United States v. Bank of United States, 8 Robinson (La.) 262; Dundas v. Bowler, 3 McLean 397. The Massachusetts court has, in many instances, and in com-: paratively recent times, (Zipcey v. Thompson, 1 Gray 243,) repudiated the notion of giving effect to voluntary assignments by insolvents when they operated against tlieir local legislation, or to defeat attachments made by their own citizens, but they assign no grounds or reasons for such a course which would not equally justify that State in disregarding all foreign contracts which — 459 — seemed unfavorable to their interest, or not in strict conformity with the special provisions of their local law. In Connecticut, in Atwood v. Protection Insurance Co., 14 Conn. 555, such assignments are held valid te pass property in that State, although not conforming to the specific requirements of their law, very similar to many of the requirements of our assignment law of 1352. So also in New Hampshire, Sanderson v. Bradford, 10 N. H. 260. We have thus disposed of all which could fairly be urged in favor of holding the trustee liable, in this State, unless it be the claim that these provisions of our assignment law must be regarded by our courts as something pertaining to the settled policy of the State, in regard to the disposition of the effects of insolvents among their creditors, or else that it was meant to attach to all such contracts intended to affect property here situated, wherever made. But we think there is no plausibility in adopting either of these views. We have said that these provisions of the statute are of a character to indicate very clearly that they were designed to have operation only upon assignments made within the State. And they do not indicate any purpose of being applied to the property conveyed, instead of the contract. They are regulations affecting a particular class of contracts, and not the general mode of transferring personal property for the benefit of creditors. There is more plausibility in the argument which attempts to apply them to all assignments of property for the benefit of creditors, than in that which would make them a portion of the fixed policy of the State, in regard to the disposition of property for the payment of debts of insolvent persons, whenever such property is found in the State, like, for instance, our rule of law requiring a delivery of the property in order to put it beyond the reach of process. The Louisiana cases cited go upon this ground. But wrn are not prepared to adopt this view even. In every view which we are able to take of the case we think the trustee was properly discharged, and; consequently, the judgment is affirmed.