1. An assignment by an indebted party for the benefit of
creditors in trust that the assignee shall sell the property "on
such terms and conditions as in his judgment may appear best and
most for the interest of the parties concerned" has been held by
the Supreme Court of Wisconsin to be fraudulent and void.
2. In cases involving the construction of a state statute, this
Court is bound to follow the judgment of the highest judicial
authority of the state.
3. If a debtor makes an assignment which is void, and afterwards
-- but before any creditor has acquired a lien -- makes another
which is free from objection, the latter assignment is valid.
Page 67 U. S. 533
MR. JUSTICE SWAYNE.
This is a suit in equity having for its object to set aside two
assignments made by the defendants, Henry Hicks and Asa Hicks, to
their co-defendant Forbes.
The appellants are the complainants in the bill. They have
recovered judgments at law against Henry and Asa Hicks upon which
executions have been returned unsatisfied.
The first assignment was executed on the 4th of January, 1858.
The conveyance of the property is followed in the instrument by
this provision:
"In trust nevertheless, and to and for the following uses,
interests and purposes, that is to say that the said party of the
second part shall take possession of all and singular the lands,
tenements, and hereditaments, property and effects hereby assigned,
and sell and dispose of the same upon such terms and conditions
as in his judgment may appear best and most for the interest of the
parties concerned and convert the same into money."
The second assignment bears date on the 6th of May, 1858. It is
declared
"to be made and entered into for the express purpose of
correcting and explaining the true intent and meaning of a like
indenture made and executed between the same parties on the 4th day
of January, A.D. 1858, and which said last described instrument as
corrected shall read as follows:"
Then follows the body of the instrument, which is the same with
that of the prior assignment except that in the clause authorizing
the assignee to sell and dispose of the assigned property, the
words "upon such terms and conditions as in his judgment may appear
best and most for the interest of the parties concerned" are
omitted.
The first assignment was executed only by the assignors. The
second recites that it is between Henry Hicks and Asa Hicks, of the
first part, and Forbes, of the second part, and it is executed by
all the parties.
The statute of Wisconsin upon the subject of fraudulent
conveyance
Page 67 U. S. 534
is substantially the same with that of the 13th of Elizabeth,
chapter 5.
The supreme court of the state has held that such a provision as
that referred to in the first assignment renders the instrument
fraudulent and void as against creditors.
Keep v.
Sanderson, 12 Wis. 362.
In cases like this, involving the construction of a state
statute, this Court is governed by the judgment of the highest
judicial authority of the state. (
Leffingwell v. Warren,
decided at this term). This ruling of the Supreme court of
Wisconsin is sustained by numerous adjudications in other states. 2
Seld. 510; 6 Seld. 691; 17 N.Y. 21; 21 N.Y. 168; 2 Duer 533; 24
Ill. 257; 11 Md. 173.
There are conflicting authorities upon the subject of great
weight. 6 Ohio St. 620; 7 Paige 272; 11 Barb. 198; 4 Sandf. S.C.
252.
See also the dissenting opinion of Brown, Justice, in
Benedick v. Post, 12 Barb. 168. The question, as an
original one, is not before, us and we express no opinion upon
it.
The Statute of Elizabeth was declaratory of the common law. In
the absence of such legislation, the common law would have
accomplished the same results.
Twyne's Case, 3 Coke 80,
S.C., 1 Smith's L.C. 1.
Codagan v. Kennet, Cowp.
434;
Wheaton v. Sexton, 1 Amer.L.C. 68;
5 U. S. 1 Cranch
316; 1 Binney 514, 523; 4 McCord 295.
It is not claimed that when the second assignment was executed,
any creditor had acquired a lien upon the property covered by
it.
That assignment is free from the vice which was fatal to its
predecessor, and is valid. 11 Ill. 503; 16 Pick. 247; 28 Vt. 150; 2
Ed.C. 289. This proposition is so clear upon reason and authority
that it would be a waste of time to discuss it.
None of the authorities relied upon by the counsel for the
appellant is in conflict with this decision.
In one of them, the assignee did not join in the execution of
the second instrument, and it did not appear that he had ever
Page 67 U. S. 535
assented to it. In the others, creditors had interposed and
intervening rights had attached to the property.
"It is a settled principle that a deed voluntary or even
fraudulent in its creation and voidable by a purchaser may become
good by matter
ex post facto." 4 Kent's Com. 559; 1
John.C. 136; 15 John. 571; 2 Edwards C. 289; 1 Sid. 133; Amer.L.C.
82.
The court below dismissed the bill. We think there is no error
in the decree, and it is
Affirmed with costs.