187 U.S. 165 (1902), 67, Metcalf v. Barker

Docket NºNo. 67
Citation187 U.S. 165, 23 S.Ct. 67, 47 L.Ed. 122
Party NameMetcalf v. Barker
Case DateDecember 01, 1902
CourtUnited States Supreme Court

Page 165

187 U.S. 165 (1902)

23 S.Ct. 67, 47 L.Ed. 122

Metcalf

v.

Barker

No. 67

United States Supreme Court

December 1, 1902

Argued October 30, 1902

CERTIFICATE FROM THE CIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT

Syllabus

The question in this case was whether, under § 67f of the Bankruptcy Act of 1898, where a final decree recovered within four months of the petition, but which was based on a judgment creditors' bill in equity filed long prior thereto, the creditor had a lien on the assets involved in the action which was superior to the title of the trustee in bankruptcy, or whether (as was held by the district court) § 67f prevented the complainant from acquiring any benefit from the lien, or the fund attached except through the trustee in bankruptcy pro rata with other creditors. Held that while the lien created by a judgment creditors' bill is contingent in the sense that it may possibly be defeated by the event of the suit, it is in itself, and so long as it exists, a charge, a specific lien, on the assets not subject to being divested save by payment of the judgment sought to be collected, and a judgment or decree in enforcement of an otherwise valid preexisting lien is not the judgment denounced by the bankruptcy statute which is plainly confined to judgments creating liens.

When, therefore, a judgment creditor files his bill in equity long prior to the bankruptcy of the defendant, thereby obtaining a lien on specific assets, and diligently prosecutes it to a final judgment, he acquires a lien on the property of the bankrupts which is superior to the title of the trustee, and a district court of the United States does not have jurisdiction to make an order in bankruptcy proceedings against the defendants enjoining him from enforcing such lien.

See also Pickens v. Roy, decided this term, p. 177, post.

The certificate in this case is as follows:

This matter came before this court upon a petition of Metcalf Brothers & Co. to superintend and revise in matter of law certain proceedings of the District Court of the United States for the Southern District of New York wherein an order was made by said district court enjoining the petitioners, [23 S.Ct. 68] Metcalf Brothers & Co., from taking any further proceedings under any judgment obtained by them in the Supreme Court of the State of New York in a judgment creditors' action wherein certain transfers made by the bankrupts had been set aside as to them

Page 166

as fraudulent and void, and wherein receivers of the property of the bankrupts appointed by the said supreme court had been directed to pay to them the amount of their judgments at law upon which their said judgment creditors' action was founded.

For its proper decision of the matter, this court desires the instruction of the Supreme Court upon the questions of law hereinafter stated, and hereby certifies the same to the Supreme Court of the United States for that purpose.

Statement of Facts

On the 2d of October, 1896, Lesser Brothers, subsequently adjudged bankrupts, who were copartners, being then insolvent, transferred all their property, copartnership and individual, to certain favored creditors. All their outstanding accounts, being copartnership property, they transferred by instruments of assignment to Marcus A. Adler and others. They confessed various judgments in the supreme court of the State of New York in favor of Bernhard Moses and others, upon which executions were at once issued to the Sheriff of the County of New York, who levied thereunder on all their tangible personal property, consisting of clothing material and stock in trade. This also was copartnership property, and, with the book accounts, comprised all their property except a piece of real estate owned by Israel Lesser individually and a ground lease of another piece of real estate owned by Tobias Lesser individually. These two pieces of real estate the individuals owning them conveyed to Joseph Lilianthal.

After making these transfers, and after the levy by the sheriff under the executions issued upon the confessed judgments, and on the same day, by a fraud upon the court, in a collusive action in the Supreme Court of New York to dissolve the partnership, they procured the appointment of a receiver of the partnership property, Morris Moses, who was nominated by and in collusion with them. Subsequently a receiver nominated by certain creditors, James T. Franklin, was associated with Mr. Moses by the same court.

Various creditors of the bankrupts immediately commenced

Page 167

actions of replevin to recover portions of the goods in the hands of the sheriff. Their claims were conflicting with each other and with those of the confessed judgment creditors, and in an action brought in the supreme court of New York by the receivers an order was made restraining the sale by the sheriff under the executions, directing a sale by receivers (Mr. Moses and Mr. Franklin being also appointed such receivers in that action), and that the latter should hold the proceeds of the sale subject to the claims of all parties, such claims to be determined in that action. Pursuant to this order, the goods were sold, and the receivers so appointed now hold the proceeds thereof. This order was made November 23, 1896. The action is still pending, undetermined.

On the 22d day of October, 1896, and the 29th day of October, 1896, Metcalf Brothers & Co. procured judgments in the Supreme Court of the State of New York against the Lessers for $930.21 and $2,547.80 respectively, upon which executions were issued and returned unsatisfied.

On the 17th day of December, 1896, Metcalf Brothers & Co. commenced a judgment creditors' action in the Supreme Court of the State of New York, which came to trial on the 17th day of December, 1897, and as a result of which the transfers to which reference has been made and the proceedings for the appointment of the receivers were adjudged fraudulent and void as to them. The court, however, set aside the transfers of the copartnership property, not only in favor of Metcalf Brothers & Co., but also in favor of the receivers. It set aside the transfer of the real estate in favor of Metcalf Brothers & Co. alone. Judgment was entered on this decision April 6, 1898.

This judgment determined that the proceeds of the sale of the tangible property then in the hands of the receivers and the outstanding accounts or their proceeds in the hands of the transferees (to be accounted for under the judgment to the receivers) were to be administered by the receivers for the benefit of all the creditors of the copartnership equally, including Metcalf Brothers & Co., while the real estate transferred

Page 168

became subject to the lien of the judgments of Metcalf Brothers & Co. on October 22d and 29th, 1896.

All parties except the receivers appealed from this judgment to the appellate division of the supreme court of New York; that court affirmed the judgment of the trial court as to the fraud, but reversed it insofar as it granted relief in favor of the receivers. It directed the payment by the receivers to Metcalf Brothers & Co. of the amount of their judgments out of the money in the receivers' hands, and, since Metcalf Brothers & Co. were to be so paid, it reversed the judgments in their favor against Adler, one of the transferees of the accounts. Upon the ground that there was no proof of fraud, it also reversed it against the transferee of the real estate.

This decision was embodied in an instrument made the 30th day of December, 1898, entitled an "order," but which, after reciting the necessary facts, "ordered and adjudged" that the judgment of the trial term be modified as stated, and also "ordered and adjudged" that the transfers in question, except the transfer of the real estate, were fraudulent and void as to Metcalf Brothers & Co.; that the receivers be, and they were thereby, directed to pay to Metcalf Brothers & Co. the amount of their judgments, with costs, and that final judgment should be entered in accordance therewith. This instrument was filed in the office of the clerk of the appellate division of the supreme court of New York, and was the only paper signed by that court or kept [23 S.Ct. 69] in its records. A certified copy of it was transmitted to the clerk of the supreme court, upon which, after the costs had been taxed, a final judgment was entered by the latter clerk on the 31st day of January, 1899, following in all essential respects its verbiage. The delay in the entry of final judgment was caused by various motions before the appellate division for reargument.

On the 12th day of May, 1899, Lesser Brothers filed in the District Court of the United States for the Southern District of New York a petition to be adjudged bankrupts, and they were adjudicated bankrupts on that day. Subsequently, and

Page 169

on the 7th day of June, 1899, Benjamin Barker, Esq., was appointed their trustee in bankruptcy.

From the judgment of the appellate division in the action brought by Metcalf Brothers & Co. all parties except Lilianthal, the transferee of the real estate, appealed to the Court of Appeals of the State of New York. That court affirmed the judgment of the appellate division in favor of Metcalf Brothers & Co., and also restored to them the rights awarded them by the judgment of the trial court, of which they had been deprived by the appellate division. The final result of the litigation was that the transfers in question were declared fraudulent and set aside in favor of Metcalf Brothers & Co. only; that as to all other persons they were (until impeached in a proper action) valid; that the receivers were directed to pay out of the funds in their hands to Metcalf Brothers & Co. the amount of their judgments, and that those creditors could also proceed for the collection of their judgments, if necessary, against the...

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312 practice notes
  • 109 B.R. 677 (Bkrtcy.E.D.Pa. 1990), 89, In re Aspen Data Graphics, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • 19 Enero 1990
    ...garnishment occurred during the ninety day preferential period prior to bankruptcy it could have been challenged. E.g., Metcalf v. Barker, 187 U.S. 165, 174, 23 S.Ct. Page 681 70, 47 L.Ed. 122 (1902) (decided under the former Bankruptcy Act); In re B-Way Construction, 68 B.R. 651 (Bankr.D.O......
  • 13 F.2d 667 (N.D.N.Y. 1926), In re Caswell Const. Co., Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court of Northern District of New York
    • 12 Julio 1926
    ...date of adjudication. Section 70 of Bankruptcy Act (Comp. St. Sec. 9654); In re Cramond (D.C.) 145 F. 966, 978; Metcalf Bros. v. Barker, 187 U.S. 165, 174, 23 S.Ct. 67, 47 L.Ed. 122; Schoenherr v. Van Meter, 215 N.Y. 548-553, 109 N.E. 625. In U.S. v. Lewis, 13 N.B.R. 33, 38-39, Fed.Cas. No.......
  • 43 F.2d 762 (S.D.N.Y. 1930), Spellman v. Sullivian
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 6 Febrero 1930
    ...R. Co., 99 U.S. 398, 25 L.Ed. 437; Freedman's Sav. & T. Co. v. Earle, 110 U.S. 710, 4 S.Ct. 226, 28 L.Ed. 301; Metcalf v. Barker, 187 U.S. 165, 23 S.Ct. 67, 47 L.Ed. 122. I cannot doubt therefore that a creditor's bill brought by a judgment creditor with execution returned unsatisfied i......
  • 16 So.2d 689 (Ala. 1943), 4 Div. 306, Rowe v. Bonneau-Jeter Hardware Co.
    • United States
    • Alabama Supreme Court of Alabama
    • 16 Diciembre 1943
    ...U.S. 318, 51 S.Ct. 465, 75 L.Ed. 1060; see Heffron v. Western L. & B. Ass'n, 9 Cir., 84 F.2d 301, 112 A.L.R. 501; Metcalf v. Barker, 187 U.S. 165, 23 S.Ct. 67, 47 L.Ed. 122; 8 Corpus Juris Secundum, Bankruptcy, § 266, p. 959, note 20; Hillyer v. LeRoy, 179 N.Y. 369, 72 N.E. 237, 103 Am.......
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310 cases
  • 109 B.R. 677 (Bkrtcy.E.D.Pa. 1990), 89, In re Aspen Data Graphics, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Third Circuit
    • 19 Enero 1990
    ...garnishment occurred during the ninety day preferential period prior to bankruptcy it could have been challenged. E.g., Metcalf v. Barker, 187 U.S. 165, 174, 23 S.Ct. Page 681 70, 47 L.Ed. 122 (1902) (decided under the former Bankruptcy Act); In re B-Way Construction, 68 B.R. 651 (Bankr.D.O......
  • 13 F.2d 667 (N.D.N.Y. 1926), In re Caswell Const. Co., Inc.
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court of Northern District of New York
    • 12 Julio 1926
    ...date of adjudication. Section 70 of Bankruptcy Act (Comp. St. Sec. 9654); In re Cramond (D.C.) 145 F. 966, 978; Metcalf Bros. v. Barker, 187 U.S. 165, 174, 23 S.Ct. 67, 47 L.Ed. 122; Schoenherr v. Van Meter, 215 N.Y. 548-553, 109 N.E. 625. In U.S. v. Lewis, 13 N.B.R. 33, 38-39, Fed.Cas. No.......
  • 43 F.2d 762 (S.D.N.Y. 1930), Spellman v. Sullivian
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 6 Febrero 1930
    ...R. Co., 99 U.S. 398, 25 L.Ed. 437; Freedman's Sav. & T. Co. v. Earle, 110 U.S. 710, 4 S.Ct. 226, 28 L.Ed. 301; Metcalf v. Barker, 187 U.S. 165, 23 S.Ct. 67, 47 L.Ed. 122. I cannot doubt therefore that a creditor's bill brought by a judgment creditor with execution returned unsatisfied i......
  • 16 So.2d 689 (Ala. 1943), 4 Div. 306, Rowe v. Bonneau-Jeter Hardware Co.
    • United States
    • Alabama Supreme Court of Alabama
    • 16 Diciembre 1943
    ...U.S. 318, 51 S.Ct. 465, 75 L.Ed. 1060; see Heffron v. Western L. & B. Ass'n, 9 Cir., 84 F.2d 301, 112 A.L.R. 501; Metcalf v. Barker, 187 U.S. 165, 23 S.Ct. 67, 47 L.Ed. 122; 8 Corpus Juris Secundum, Bankruptcy, § 266, p. 959, note 20; Hillyer v. LeRoy, 179 N.Y. 369, 72 N.E. 237, 103 Am.......
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2 books & journal articles
  • The logical structure of fraudulent transfers and equitable subordination.
    • United States
    • William and Mary Law Review Vol. 45 Nbr. 1, October 2003
    • 1 Octubre 2003
    ...require." Nevertheless, the result was correct in Leonard for the reasons stated infra in the text accompanying notes 73-74. (60.) 187 U.S. 165 (1902). (61.) Bankruptcy Act of 1898 (repealed 1978). (62.) Metcalf, 187 U.S. at 172. The explanation for this is that [C.sub.1] already has a......
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    ...also decided the sale was in fact a loan, and borrowing does require court approval. 11 U.S.C. [section] 364(a). (189) Metcalf v. Barker, 187 U.S. 165, 174 (1902) ("The state courts had jurisdiction over the parties and the subject matter, and possession of the property. And it is well......