The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-07-19
DECISIONS OF TIE HIGH COURT.
OCTOBER TERN, 1880.
lR1PoRrED EHrREsslr PoE fm tlstrEN cl,uovl
Warren W. Catchings, etal
C. A. Manloye, ct al.

Net g-bp
c. A. Manloye, ct al.
This bin was filed by, and on behalf o
certain creditors Of CavilO. Jackson, de
ceased, Tor the purpose Of subieoting Il
the payment Of their debts against him
the proceeds Of policy Of insurance up
on the life of the decedent obtained i,
him in his life time.
II appears by the statements Of tn
bill, that jackson died in September 1855
having ON the day Of his death made hi
last VIII and testament that .'aes =
dcbted 70 the compliments Catchtngs ane
Putnam, in the sum of S6S5S So, and t
the complainant Miles and Adams, in tht
sum of $l3, S67 43, which debts were duly
proved, and that the executor named il
the will, soon after his qualification, re
ported the estate insolyent, and it was sc
declared by the Court Of Probates, and all
the claims against it were referred to com
missionors who reported the same, show
ing their amounts and the names OF the
various creditors, among which are the
qomplainants above named, which report
was confrmed--that the assets of the es-
tate, as shown by the report amounted to
about the sum Of $1,000, exclusive OF the
policy of insurance-that at the time of
the execution Of his will by said Jackson,
he executed an assignment Of said policy
of insurance, which was for the sum OF
$4,000, to his wife and two children, trans
ierring the same in writing to his wife and
two children, that doubt having arisen as
to who was entitled to receive the money
due upon said policy ofinsurance the com
pany paid the same to the executor, under
an agreement made by the parties claim
ing under the assignment, that he should
hold the same until the rights Of the par
ties, creditors and sssigneeS should be set
| tied by law, and that tho executor now
holds the money under the agreement,
that the assignment Of said policy was
made by the testator without consdera-
ton, and is voluntary, and that the ex-
ecutor refuses to return the fund in his
hands as part of the testator's estate,
because Of the claim of the parties, un-
der the assignment.
A demurrer to this bill was sustained,
and the bill dismissed, and from that de-
cree, this appeal was taken.
In the argument Of the case here, two
questions have been presented for con-
sideration.
| First Whether the transfer Of the
policy can be held TO be fraudulent as To
| creditors upon the mere ground that Il
was voluntary and without valuable con
sideration, and that the assignor was in
! dAb44d teaiReeesly teaiReeesly;AenNv n at the time' wlthou
Second. Whether the fund receive
upon the policy can be subjected to th
claims of creditors, as the policy was
mere chose in action and not subject t
: execution, when it was assigned.
The first question arises upon the OF
lection to the bill, that it merely allege
that the assignment was voluntary anC
without consideration and does not al
lege that il was made with fraudulen
intent.
II sufficiently appears, by tho state
ments of the bill, that Jackson was large
" indebted. even to insolvency, at the
time of the assignment, and that il was
mere Gift for the benefit Of his wife and
, children. and il is well settled that con
veyance or assignment under such cir
cunstances is fraudulent as to creditors,
and void in law as to them, whether II
was made with an actual fraudulent IN
tentor not. The fact that the party was
insolvent at the time Of the transfer, rem
ders the mere voluntary assignment to
wife or children void in law as to creditors
because the debtor has no right to with
draw his property from liability to pay
hisdebts, to the prejudice of his creditors
| II Fonbly, Eq. B. ! Oh. 4, 2 IL, note a.
In such a state of the case it results as 2
conclusion of law from the facts, that the
CONVEYANCE is fraudulent as TO creditors
Gilmore VS.. North Amer. Land Co.,
Peters, G c. Rep. 460; Thompson vs.
Doueherty, Il S. & R. 448; Reade VS.
Livingston, 3 John Oh. Rep. 500, Story
Eo. Jur. z 355 Hence it is not necessa
nv in such case, to aver that the convey
ance or assignment was made with irau
dulent intent, for it is a rule Of pleading
that party ID only required to state the
facts necessary to make out his claim oi
TO sustain his action, and the law VIII
draw Jhe legal conclusion from 1hos'
! facts. .
s The rule is otherwise in the case OF
conveyance made upon a valuable con
; alteration. for then the conveyance Deln9
\ nyjna faeia fair and valid, it's incumbent
{ on the party impeaching it, to. aver ano
proye that II was made with irauduien'
intent.
The assignment in this case appears t'
l have been Of very considerable part o
the property of the assignor ana thougn
a party may lawfully make glit 70 ~ -.
e wife or child Of a reasonable part OF IN
a nroperty. if he be not insolyent az th'
lime or largely indebted, and such gi'
will he valid If made bona .fyt, as agains.
subsequent creditors yet if he be lnsol
vent AZ the time the gift cannot stanC
: AGAINST the claims Of creditors then e1lst
jno whether made with an actual iraudu
lent intent az to them or not. Salmon
VS.. Bennett, Conn. 525; lilndes Lessee aSs
10 va. Longsworth, II Wheat wv Zl7'
= Story's Ia. Jur. II 3jG, 351 ....
Upon tie second question, itis ins'ste'
that the assignment is not within TN
statute against fraudulent conyeyances
because the thing transferred was mer
: chose in action, which could not be takel
r. in execution, and that the statute applle
only to property which could be reaehe'
by execution.
The adiudicated cases upon this questil!o
y are conflicting. In England, the Garlic
decisions held that such property was viii
in the statute, but the later cases appea
>. to settle the rule to the contrary an
or hold that the conveyance or assignment
u cannot be declared void, and the propert
"a subjected to the claims Of creditors, ~ u;
IT. der the statute, unless it be property III
p bic to be taken under an execution
law. / Story's Eq. Jur. 367, and cast
there cited. The former rule is sanction
cd BY the American decisions. 4John u