The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-11-12
The Huntington Financae, sng Opcr ati0ns.
buPERIoR CoUET-sPEcIAL TEEN.
Before Hon Iiidya R.uuarth

Before Hon Judge Ellsworth.
Nov l0.--Bishop cgt. r. Haisey, l.. H. and c.
Beiden, and u III. and J. H. HayJeck-- First Ac-
tion-- Bishop and Ste,cart agt The Same Defend
ant Charles b. Hrntngton--S Action.--An
assignment by debtor of all his property in trust
10 pay two creditors, and which is silent as to the
tact whether there are or are not other creditors
and which makes no provision as to the surplus, is
not void on its face irrespective of extrnsic facts
and of the actual intent with which it is made.
creditor at large Of q fraudulent assignor canno
maintain an action to set aside fraudulent assign
nent, nor can q mere voluntary assignee of such
fraudulent assgnor. A creditor who has recovered
Judgment and issued execution may, so far as it il
an assignment Of real and evable personal property
after execution actually returned, be may also insti
tute suit to reach the choses in action OF the
debtor. In an action, by judgment and execution
creditor, to set aside such assignment first
above named 1T il matter of course to eDoin the
stsignee from proceeding at all, and TO appoint re-
ceiver when he motion is met by full denial of
tuo fraud and OF the mate, ia facts alleged evidence
OF it, and IL expressly avowed that the whole assign
ed property is insufficient to pay the deots for which
provides, and especially when the insuciency of
the property for that purpose is not controverted
But the court will make such orders ~, in view of
| all the facts and circumstances, may seem to be
just to secure to the parties such relief the court
may ultimately decide them to be entitled to. Facts
= The suit by Bishop, as sole plaintiff, Ia brought
TO set aside an assignment made by Huntington
on the 10th Of October. 1885, to Hasey, of all his
ing his debts to the Bedens and Harbecks and his
liabilities to them. 1t neither states the amount Of
them nor the value of his property, nor whether he
5as other creditors, nor provides what shall 6e
right to sue is derived from a voluntary assignment
made to him by Huntington of all his property, on
the 18th OF October, 1856. The object OF the first
suit Is to set aside the first assignment fraudulent
anc TO distribute the property under the second one
which is for the equal benefit of all the creditors.
temporary Injunction restraining Hasley from dis
motion to have it continued until the hearing, Hun.
tington confessed judgment to Bishop and Stewart,
on the goth of October, for over SGT 000 Execution
was issued the same day, and returned unsatisied
| The second action as then brought by Bishop and
| Stewart ~ judgment and execution creditors Of
Huntington, against the same defendants as on the
| first one, and Huntington was also made defen-
dant The object of the second action s set aside
the first assignment, and have the property applied
to pay the udgme in favor of Bishop and Stewart.
Both complaints state that there were other credi.
tcrs, TO large amount who are not provided for in
the assignment made to Halsey, and allege that it
| was made With intent to defraud; and also insist
tlat rs void, because 1t is an assignment Of all
TIE debtors property; with provision for
| paying any other creditor, and has result
trust OF the surplus forthe of the assgnor. 1t
also states that Huntington was insolvept. The an
i
eXtrinsc facts stated evidence Of H. except that
there were other creditors and that Huntington was
il solvent and that the property assigned to
hassy Is Wholly insufficient to pay those secured BY
il notion restraining Halsey from interfering with
dsposng Of the property. A receiver is prayed for
These, and the facts stated in the opinion, are all
that necessary TO understand the grounds Of the
| cetision made. Therasson x Bryan and James T.
| Brady for plaintiffs: Tracy Powers Il Tallmadge
ard VIM. Cnitis Noyes, for defendants.
Boswortb, J.-What is the nature and legal enec
c. tie instrument or assignment 9. he 10th Of Octo
tobcr 1856? r. in terms. .aassigns conveys transfers
aEd sets 10 Haisey his heirs executors admin
stiators and assigns all ard singular the real and
personal estate OF wn'sA Huntington mny be seized
Possessed OF or entitled unto, either at law or in
eesiy,t IN possession, reverson or remainder. II IL
fhefoIe en- absolute grant convey ance OF all the
property Of the assignor. The assignment does not,
" It's terms, declare that IL Is made in trust IT'S
Iangusgesis that the assignee Halsey, is TO enter
| into and upon the assigned property, TO take
| Possession, convert into money, and to get
in said personal estate, and 70 sell and convey
said real estate, and ont OF the proceeds psy, salts.
II and discharge all lability, indebtedness, obli
cations, OF any name, nature and description, that
the said Huntington may be, or may become under
subject TO- or in favor OF Charles Beden. Charles
Belden & Co, William II. Harbeck, John H. Har.
| beck, or Harbeok & Co, all or either of them in
manner and form following: That Is to say, Char
Ia Belden and Charias Beldcn 4 Co., are to receive
Jointly one half OF said proceeds and William Har
beck, John II. Harbeck ard Harbeck & Co., are
Jointly to receue one half Of said proceeds the said
| parties being thus paid half and half.n No provi-
| son Is made for other creditors, and the assign.
nest does not disclose or intimate that there
other creditors and IL Is silent as to any sur
Plus. The defendants aver, by their answers, that
all the estate of Huntington Of which they have any
knowledge, or which they have been able TO disco
vr IL insufficient to discharge the liabilities intend
cd TO be satired through the assignment. The az.
alignment as construe II, provides for applying the
an M sns Psope 81 ,4a M 70 Pay
dens and the Harbecks. IL avows q purpose TO pay
them half and balt-or, in other words, much OF
The debts owing to the one as to the others. As
snmng for the purpose Of the present motion, that
the whole proceeds are insufficient to pay them in
foil, and that the assignment was made without
any actual intent to defrnud II be said TO be void
by reason Of any matters appearing on It's face for
state, or any principle of common awl debtor,
not having property enough 10 pay all his creditors,
may at fair piices sell and transfer to particular
creditors to the exclusion OF Others enough TO sa
tisfy the debts owing to those 10 whom the transfers
are made. he may so sell and apply until his whole
property is exhausted. He may mortgage all his
estate to particular creditors, and thus prefer the
mortgages. (eitch Hollister. CONS, 2ll.) May
lie transfer IL TO a third person. 10 convert and
apply to pay particular creditors, the whole proper
:. being Insufficient TO pay themg Express trusts
moy lie created to sell lands for the benefit OF
dtors. q n. s. 72s, sec. IS. sub. ID IL would
seem 10 he idle 10 make provision. in terms for
the benefit Of creditors 10 whose benefit there could
ie bo pfonertyto ne appned. lthink this statute ar
ihorizes trusts for the benefit Of only a part OF
debtors creditors, when all the properly Il assigned
IN trust for their benefit and is insufficient 20 pay
them. u there Is no Other objection 10 the trust
convey alce than the mere fact that IL does
rot, in terms, provide for creditors who could
IN no contingency. lie benefited by il, be-
cause there nothing for them 10 take under IT,
i such trns's may be created to sell lands for the
ieneft OF creditors, IL there any rule Of law prohibit
ing such trusts TO convert aud apply personal pro-
Ierty for the benefit Of creditorsg This assignment
oi.,Is in one important feature from those adjud
Gated upon In Mackie va. Cairns s Cow, 547 and
Goodrich VS.. Downs. Hfll, ass, and Barney va
Grifin, CONS, 367. In each OF the cases cited the
assignment contained, in express terms provision
Tor The benefit OF the assignor, by directing a
specihc appropriation of, or payment 10 him.
o. part o. the proceeds OF the property as
siened, before all his creditors were paid m
inll That provision was held to be sufficient 10
av d the assignment w toto although there was no
actual intent 10 defraud II was held 20 be viola
ton OF ibe statute which inhbis all transfers OF pcr