Estabrook v. Messersmith

By the Court, DixoN. C. J. The plaintiffs move to strike the bill of exceptions from the files, because it was settled and signed without notice to their attorneys, and because no copy was served upon them. The motion is made upon the affidavits of their attorneys, Mr. Knowlton and Messrs. Clary & Ma-goon, to the effect that they were not served with a copy of [549] tbe proposed bill, nor with notice of settlement, and that they never assented to the signing of the same. In opposition to these is the affidavit of Mr. Mills, one of the attorneys for the defendants, who makes a statement in detail of the facts which occurred in connection with*the settlement and signing of the bill. Mr. Mills deposes that when the bill was settled before the judge, Mr. Magoon appeared and professed himself perfectly satisfied with it; the judge, at Mr. Magoon’s instance, having rejected the draft prepared by Mr. Mills and accepted that drawn by Mr. Magoon, saving the concluding paragraphs, which show the verdict of the jury, entry of judgment, and signing and sealing by the judge. Mr. Mills further deposes that the bill thus settled was presented to the judge for his signature in open court, at the September term, 1863, Mr. Cla-ry being present, and appearing for the plaintiffs; that the whole bill was then shown to Mr. Clary, and especially the concluding clauses; that the judge filled in the date, wrote his name upon the exhibits and signed the bill, in Mr. Clary’s presence ; and that Mr. Clary made no objection to the signing of the same, and deponent never heard of any from any party until the making of this motion. The bill of exceptions furthermore recites, that “having been settled by the court, in the presence of the parties, by their attorneys, the same is signed and sealed by the judge, ” &c. Upon these facts, the motion must be denied. The history of the transaction shows that the attorneys for the plaintiffs waived service of copy and notice, and that they assented to the signing by not objecting when they should have done so. The judgment must be reversed for error in granting the sixth, seventh, eighth and ninth instructions asked by the plaintiff. 1. The first clause of the sixth instruction is without objection, but the last is not. The plaintiffs were partners, and sue for the alleged wrongful taking and conversion of their partnership property; and such is the nature of their legal rights [550] —they are so indissolubly blended — that they must not only join in an action at law, but a right of action must be established in both, or no recovery can be had. It is a general principle applicable to suits of this nature, that all must be entitled to judgment or none, and in cases where either party is precluded on the ground of fraud, the fraud binds not only the guilty partner, but the innocent partners, in that suit. Story on Partnership, § § 236, 108 and 166. The error in this instruction is, that it directly contravenes this principle. The jury were told that the plaintiffs might recover, even though they should find that one of them was not entitled to maintain an action at all.- The judgment, when recovered, would be the joint property of all the plaintiffs, and would go to the benefit of the guilty equally with the innocent. The law does not tolerate any such inconsistency as to allow a guilty party to come into court and reap the benefit of his own fraud by joining his innocent co-partner with him. These principles are fully illustrated by the following cases: Jones v. Yates, 9 Barn. & Cress., 532 (17 E. C. L., 436); Wallace v. Kelsall, 7 Mees. & Welsb., 264, 273; Homer v. Wood, 11 Cush., 62; Fellows v. Wyman, 33 N. H., 358; Kilby v. Wilson, Ryan & Moody, 178 (21 E. C. L., 409); Richmond v. Heapy, 1 Starkie, 202 (2 E. C. L., 356). It would seem from these authorities that if th’e defrauded partner has any remedy, it is by a suit in equity, in which the objection of joining his guilty co-partner as a party plaintiff is easily obviated. 2. In the seventh instruction, the jury were charged that if the plaintiffs in attachment, in whose right, as creditors of Boger Bromley, the defense is made, received a per centage of the debt due them under the assignment of Boger Bromley for the benefit of his creditors, then they could not proceed by attachment against any goods owned by Boger Bromley at or prior to the time of making the assignment, and the justification set up in the answer conld not be maintained. It is well settled that, unless prohibited by statute, partial assignments of the [551] debtor’s property for the benefit of his creditors may be made, leaving the unassigned residue open to the claims of his creditors, and that creditors may receive their dividends under the assignment and proceed by action to recover the balance, if any, out of the property not assigned. Burrill on Assignments, chap. X; Bates v. Ableman, 13 Wis., 644. And whether the assignment be partial or general, a condition that the creditors accepting it must release their claims, or be debarred of their remedy by action against the assignor, makes the assignment void. Burrill, ibid., and chap. XVIII, and cases cited. The plaintiffs in attachment were therefore at liberty to proceed by action against the assignor, and, in a proper case, to attach his goods, provided they were such as were not in fact transferred by the assignment. Bank of Bellows Falls v. Deming, 17 Vt., 366. 3. The eighth and ninth instructions may properly be considered together. They involve substantially the same legal propositions, and if one is erroneous, both are. They are to the effect that the assignment by the debtor of all his property for the benefit of his creditors, carried with it to the trustees the title to property which he had previously fraudulently transferred for the purpose of hindering, delaying or defrauding his creditors. This seems to be the very opposite of the settled rule of law. Brownell v. Curtis, 10 Paige, 210; Browning v. Hart, 6 Barb., 91; Leach v. Kelsey, 7 Barb., 466; Vandyke v. Christ, 7 Watts & Serg., 373; Jones v. Yates, supra; Burrill on Assignments, chap. XXIX, p. 358. The assignor having himself no property in the goods which he had fraudulently transferred, could pass none to his assignees. It was observed by Lord Teitterden in the case last cited, that with the exception of a compulsory assignment under the bankrupt laws, which stands upon peculiar grounds, he knew of no instance, and none had been mentioned at the bar, where the répresentatives could sue where the party represented ciDuld not. The case of an executor or administrator suing for the [552] recovery of real estate fraudulently conveyed by the deceased in bis lifetime, under our statute, may be cited as another. R. S., ch. 100, sec. 16. The transfer from Roger Bromley to his assignees being voluntary, he could not give them a right of action when none existed in himself, and that right remained, as before, in his creditors. Judgment reversed, and a new trial awarded.