Bennett v. Schuster

Beery, J. Section 15, c. 52, Gen. St., provides that when there is a deficiency of assets in his hands an administrator may, for the benefit of the creditors of the deceased, “sue and recover for all goods, chattels, rights or credits” which may have been conveyed by the deceased in his life-time, with intent to defraud his creditors,” etc. The particular action thus authorized has, by the terms of the section, reference to a case in which, in consequence of the fraudulent conveyance, there is a deficiency of assets in the hands of the administrator. Where, notwithstanding the fraudulent conveyance, the goods, etc., are in the hands, i. e , in the lawful possession or control, of the administrator, and are subsequently wrongfully taken and detained from such possession or control, he need not proceed under this section to formally set aside the fraudulent conveyance and have it adjudged void, but, as in ordinary cases of wrongful taking and detention, he may proceed in an action of claim and delivery. In the case at bar there is evidence tending to show that the goods and chattels sought to be recovered were held by Mary E. Peck, with the consent of the plaintiff, as administrator, and for him, so that they were in law in his possession [386] at the time of the alleged -wrongful taking. The case was therefore one in which, upon the evidence, he might properly seek to recover the property in question in an action of claim and delivery. The referee by whom the case was tried has in effect found that the property in controversy was wrongfully taken from the plaintiff’s possession by defendants Schuster and Parker, and that they refused to deliver the same to plaintiff upon due demand; that defendant Mary E. Peck has the possession of it, claiming to hold it as the agent of Schuster and Parker, and that it is wrongfully detained by MaryE. Peckand Schuster. Upon these findings, which appear to be sustained by the testimony and admissions in the case, there was no defect of parties defendant on account of the non-joinder of Parker. The action of claim and delivery is properly brought against the parties by whom the property sought is wrongfully detained. Gen. St. c. 66, § 113. Most, if not all, of the remaining points made by defendant are in effect that the findings of the referee are not justified by the evidence. Upon a careful reading of the settled case we have come to the conclusion that, though upon some points the testimony is weak, there is enough, in accordance with the familiar rule upon this subject, to prevent us from disturbing the findings. The statutory affidavit made in this action by the plaintiff, in order to obtain a delivery of the property in controversy, together with the requisition upon the sheriff and the sheriff’s return, both of which are required by statute to be indorsed upon the affidavit, was properly received in evidence, as showing that upon due proceedings the property had been rebonded by the defendants, and that, therefore, the plaintiff, the prevailing party, not being in possession of the property, it was the duty of the referee to assess its value and order judgment accordingly, as provided in section 219, c. 66, Gen. St. Order denying a new trial affirmed.