21 F. 15 (E.D.Mo. 1884), Clapp v. Dittman

Citation:21 F. 15
Party Name:CLAPP and others v. DITTMAN and others. [1] PERRY and others v. CORBY and another. (FN1)
Case Date:July 25, 1884
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 15

21 F. 15 (E.D.Mo. 1884)

CLAPP and others

v.

DITTMAN and others. 1

PERRY and others

v.

CORBY and another. (FN1)

United States Circuit Court, E.D. Missouri.

July 25, 1884

Page 16

G. Porter, W. D. Anderson, and McKeighan & Jones, for complainants in the first case; and Mills & Fletcraft, for complainants in the second.

Hugo Muench, for defendants in the first case. John D. Johnson and Smith P. Galt, for defendants in the second.

BREWER, J.

These cases were argued together. Both stand on demurrer to the bill. Both involve the same questions, and will therefore be disposed of by the same opinion. In them are presented three questions:

First. Where a debtor who is insolvent transfers all his property to a single party, and under such circumstances that it is obvious that there was no intention of merely giving security, and with the idea of paying the debt and reclaiming the property, must such transfer, no matter by what form of instrument, whether that of a chattel mortgage or otherwise, and whether made to the creditor directly or to a trustee, be treated as a general assignment, and for the benefit of all creditors? This question was fully considered by this court in the case of Martin v. Hausman, 14 F. 160, and after a full examination of the statutes of Missouri and the decisions of its supreme court, it was answered in the affirmative. The opinion in that case was written by Judge KREKEL, and was concurred in by my predecessor, Judge McCRARY. That opinion was followed in Dahlman v. Jacobs, 15 F. 863, in Kellogg v. Richardson, an unreported case in the Western district, and also, I am informed, in other cases in this court, as well as in some of the district courts of

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the state. While, if this was a new question, I confess my own conclusions would be different, and in harmony with the decisions of Nat. Bank v. Sprague, 20 N.J.Eq. 28; Farwell v. Howard, 26 Iowa, 381; Doremus v. O'Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, Id. 241; and other cases cited by counsel for defendants; yet I think there has been such a course of decision in this circuit as to establish the rule in the United States courts for this state in accordance with the opinion in Martin v. Hausman, supra, and until there be some authoritative construction of the statute by the supreme court of the United States, or of the state, I shall follow the rule laid down as...

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