Van Buskirk v. Warren

Bates to the plaintiffs, on November 2, 1857, was a valid sale. It is urged that the sale was by a voluntary written assignment in trust to pay creditors, and that such assignment is void upon its face, by virtue of the provisions of our statute. 2 R. S. 135, § 1. There is no express trust created in the instrument in question, nor is it a general assignment in trust for the benefit of the creditors of the assignor. I am unable to distinguish this instrument, in effect, from that in the case of Leitch v. Hollister, 4 N. Y. 211 . It is an assignment to creditors themselves, for the purpose of securing their particular demands. Neither the statute nor the principle contended for applies to such a case. If, after the payment of the particular demands it was intended to secure, there should remain over a surplus, such surplus can be reached by any other creditor, by creditor’s bill, by attachment, and, perhaps, in some cases, by redemption. The conveyance is, in effect, a mortgage. If there was any trust whatever, it was not direct but incidental. It does not appear, from the face of the instrument, that a trust was the object of it; and, if the instrument had provided, in terms, that the surplus should be returned to the assignor, it would have been but the expression of what the law itself, implies, and it would not, for that reason, have been void under the provisions of the statute referred to. Instead of showing a design on its face to withdraw his property from his creditors, it was the direct application of it to that object; and a preference among creditors for this purpose, even when the assignor is insolvent, id not fraud per se. The several modern cases in this court, of Curtis v. Leavitt, 15 N. Y. 9 ; Leavitt v. Blatchford, 17 Id. 521; Dunham v. Whitehead, 21 Id. 131; have clearly settled the law upon this point against the defendants. Nor can this court hold the assignment to be fraudulent in fact. The finding of the judge at the circuit upon this point, not being reversed by the general term, is conclusive. If we are right in these views, much of the argument • upon the character of the instrument and the intent of the assignor in law and in fact is disposed of.

It is also insisted that if the assignment be not void on its face, still, that the title to the property did not pass to the assignees before the levy by the defendants’ attachments, three

days after the assignment, as there was no evidence of the plaintiffs’ acceptance of the assignment before the attachments were levied. Whatever may be the common law rule in this respect, in regard to voluntary assignments in trust, where the assignee has no beneficial interest, it is not the rule where the assignment is directly to a party having a direct beneficial interest in the acceptance of the assignment. In such case, prima fade, the assignee accepts the title, Townson v. Tickell, 3 Barn. & Ald. 31, and the onus is upon the party claiming in hostility, to show that there never was an acceptance. Nicholl v. Mumford, 4 Johns. Ch. 522 , 528; Moir v. Brown, 14 Barb. 39 , 45. There is no provision in the statute in relation to fraudulent contracts, 2 12. 8.136, § 5, that makes instantaneous delivery an indispensable element to a valid sale, that would make void a sale of goods and chattels, or prevent the title thereto from passing to the vendee, even if unaccompanied by immediate possession. As against the creditors of the party making the assignment, or subsequent purchasers in good faith, it is presumptively fraudulent. It throws a suspicion upon the transaction, which casts the burden of proof upon the assignee to overcome. If he does overcome this presumption, if he satisfies a jury or a court, of fairness and of good faith; if he makes it appear that the sale was made without any intent to defraud such creditors or purchasers ; he shows a valid sale, and the title will have passed thereby. The finding of this court settles this question of good faith. The plaintiffs overcame this legal presumption to the satisfaction of the court below, and we are not at liberty here to question that finding. When the title passed to the plaintiffs, according to the statutes of this state, the defendants were not creditors within the meaning and intent of this statute. They were merely creditors at large; they did not bring themselves within the class of persons who had a right to attack the assignment. It being thus a valid assignment in fact, and it being already shown that upon its face it is not obnoxious to the charge of creating a trust for the benefit of the assignor, or of delaying, hindering, or defrauding the ered- ] itors of the assignor, we proceed to examine the next point in the case, which I regard as the most important one to be decided.