Bloomingdale v. Weil

• Decision Date: 09 September 1902
• Citation: 29 Wash. 611,70 P. 94
• Court: Washington Supreme Court
• Parties: BLOOMINGDALE v. WEIL.[*] SAME v. SECURITY SAFE DEPOSIT & TRUST CO.

70 P. 94

29 Wash. 611

BLOOMINGDALE v. WEIL.^[*]

SAME v. SECURITY SAFE DEPOSIT & TRUST CO.

Supreme Court of Washington

September 9, 1902

Appeals from superior court, Spokane county; Geo. W. Belt, Judge.

Suit by Emanuel W. Bloomingdale, as assignee of Marcus A. Bettman and another, against Charles Weil, and the same plaintiff against the Security Safe Deposit & Trust Company. From judgments for plaintiff, defendants appeal. Affirmed.

H. M Stephens and Saml. R. Stern, for appellants.

Graves & Graves, for respondent.

WHITE J.

The foregoing cases were consolidated. They involve the same questions, arising from the same state of facts. The respondent claims to be the owner of certain real estate in Spokane county by virtue of a voluntary assignment made by insolvent debtors in New York for the benefit of their creditors. The plaintiff alleges in the complaint the assignment and the terms thereof, and that the defendants were citizens of Massachusetts at all times, and that the assignments were made under the provisions of and in compliance with the statutes of the state of New York providing for voluntary assignment by debtors. The provisions of the New York statute are set out. The bringing of the suit by the defendants hereinafter mentioned in the findings of fact is also alleged. The plaintiff prayed for a judgment and decree of the court; that the court decree that the defendants take no right, title, or interest in, and acquire no lien upon, the realty described, by virtue of the writs of attachment issued in the suits instituted by the defendants and the judgments recovered in said suits; and, further, that the levy of said writs of attachment and judgments were apparent liens and cast a cloud upon plaintiff's title to the land, and he prayed for a decree of the court that such apparent lien should be removed, and the title to the land quieted in the plaintiff, and that the plaintiff should have such other and further relief as should seem meet and equitable. The court rendered a decree, on the findings hereinafter set out, that the plaintiff, as assignee of the partnership property of the copartnership of M. A. & D Bettman, etc., was the owner of the land described in the findings under and by virtue of the deeds of assignments in the findings mentioned, and that the judgments and attachments referred to in the findings in no way affect the title acquired by the plaintiff as assignee, and the court decreed and declared that the title to said land was free and discharged from any apparent cloud by virtue of such attachment proceedings, etc., and that the plaintiff's title acquired by the assignments was a valid and superior title to the appellants, etc. The findings of fact were as follows:

'(1) That at all times herein mentioned the defendant Weil was, and now is, a citizen and resident of the state of Massachusetts, and during the same period the defendant, the Security Safe Deposit & Trust Company, was and now is, a corporation created under the laws of the state of Massachusetts, with it principal office and place of business in the town of Lynn in said state, and is a corporation of said state.

'(2) That prior to March 5, 1898, one David Bettman, a resident and citizen of the state of New York, held title to certain realty situate within the county of Spokane, state of Washington, more particularly described as follows: [Here follows a long list of real property.] The title to the realty hereinbefore described, though standing in the name of David Bettman, was in fact the property of a copartnership known as M. A. & D. Bettman, of which said David Bettman was a member.

'(3) That on March 5, 1898, and for some time prior thereto, said David Bettman was a member of a copartnership doing business in the city, county, and state of New York, under the firm name of Stettheimer & Bettman, Henrietta B. Stettheimer being the other member of said copartnership. During the same period said David Bettman was a member of a copartnership of M. A. & David Bettman, hereinbefore referred to; said copartnership being engaged in business likewise in the city, county, and state of New York, the other member thereof being Marcus A. Bettman.

'(4) That on the 5th day of March, 1898, in the said county and state of New York, Marcus A. Bettman and David Bettman, as copartners and individually, executed, acknowledged, and delivered to plaintiff an assignment of all their estate, real and personal, of whatsoever description and wheresoever situate, upon conditions therein stated. This assignment recited that whereas, said Marcus A. Bettman and David Bettman, as partners and individuals, were justly indebted to sundry persons in divers and sundry sums of money, and, being unable to pay the same in full, were desirous of making an equitable distribution of their property and effects among their creditors, that they therefore granted, bargained, sold, assigned, and delivered over to plaintiff, his successors and assigns, all and singular the estate and property, real and personal, of every kind and nature, and wheresoever the same might be found, of the said Marcus A. and David Bettman; but in trust for these purposes: That plaintiff, as such assignee, and in trust for the purposes hereinafter specified, should take possession of all the estate, property, and effects by said instrument assigned, transferred, and conveyed, and sell and dispose of the same, convert it into money, collect all sums of money due and owing to the said first parties, and out of such proceeds to pay the costs, charges, and expenses of carrying into effect the assignment, including a lawful commission to the assignee; to pay all wages and salaries owing to the employés of said Marcus A. and David Bettman; from the proceeds of the partnership property to pay to the creditors of the partnership such sums as might be owing them, and with the residue of the proceeds, if any should remain after paying the partnership debts, to pay and discharge the private and individual debts of the said Marcus A. and David Bettman. Of the separate and individual property of said Marcus A. and David Bettman, so assigned to this plaintiff as assignee, it was directed that after paying the expenses of the assignment, and all wages and salaries owing to the employés of the individual members of said partnership, the assignee should apply the proceeds of the separate estate of each of said partners to the payment of their individual debts, and providing that, in case the individual property and estate should be more than sufficient to pay the respective individual debts and liabilities of said partners, in such event the surplus remaining was to be applied to the payment and liquidation of the partnership debts, or of any balance which might remain unpaid after applying thereto the proceeds of the partnership property. To the furtherance of this assignment, this plaintiff was constituted the true and lawful attorney of the said copartnership, and of the individual members thereof, with full power and authority to do all acts and things necessary to the full execution of the trust thereby created. At the same time and place the copartnership of Stettheimer & Bettman, composed of the said David Bettman and the said Henrietta B. Stettheimer, executed, acknowledged, and delivered a like assignment to plaintiff, whereby their real and personal property of every kind and nature was sold, assigned, transferred, and set over unto plaintiff, and whereby likewise the individual property of each of said copartners was sold, assigned, transferred, and set over unto plaintiff. This assignment was in all respects like unto the first assignment hereinbefore referred to, and their estate was conveyed to plaintiff for the same trusts, both as to the partnership and the individual property. Plaintiff, in writing, and by the same agreement whereby said trusts were created, accepted each and every trust created by each and every assignment hereinbefore referred to, gave bond as required by law, and at once entered upon the discharge of the duties of the trusts so created; and said assignments were, on March 5, 1898, recorded in the office of the clerk of the county of New York and of the supreme court of said state in said county, and certified copies were thereafter, and on March 11, 1898, recorded in the office of the county auditor of Spokane county, state of Washington.

'(5) That said assignments were made under the provisions of and in compliance with a statute of the state of New York providing for voluntary assignments by debtors for the benefit of their creditors. The material portions of said law are set forth in the amended complaints in these actions, and reference is made to said complaints for their contents for the purpose of brevity in these findings, and to avoid setting them forth in full herein.

'(6) That on or about the 22d day of April, 1898, the defendant the Security Safe Deposit & Trust Company, commenced an action in the superior court of Spokane county, state of Washington, wherein it was plaintiff, and David Bettman, Henrietta B. Stettheimer, and Marcus A. Bettman were defendants. The cause of action alleged in said complaint was one upon a promissory note executed by the copartnership of Stettheimer & Bettman, payable to themselves, and indorsed, before delivery by the copartnership of Stettheimer & Bettman and of Marcus A. Bettman and David Bettman, and thereafter delivered by said copartnerships to one Charles Weil, and by him, before maturity, assigned to the Security Safe Deposit & Trust Company. Upon the commencement of said action the said Security Safe Deposit & Trust Company filed, in the office of the clerk of the superior court of Spokane county, an...