Guerin v. Hunt

• Decision Date: 01 January 1861
• Citation: 6 Minn. 260
• Parties: VETAL GUERIN vs. HENRY W. HUNT et al.
• Court: Minnesota Supreme Court

6 Minn. 260

VETAL GUERIN vs. HENRY W. HUNT et al.

Supreme Court of Minnesota.

Appeal from order of district court, Ramsey County.

Appellant claimed that it was error to exclude proof of the solvency of the assignee, citing Burrill on Assignments, p. 400; Filley v. Register, 4 Minn., [296]; that the assignment was of partnership property only; and that proof of the transaction between Cazeau and Guerin, by which the former conveyed to the latter a part of his individual property, was improperly admitted, citing 1 Greenl. on Ev., sec. 3; Bozert v. Hay, 9 Paige, 302; Apthorp v. Comstock, 2 Paige, 482; that the acts of the assignee, subsequent to the assignment, were not admissible to impeach it. That the parol proof of the contents of the letter from Bartlett to Dufresne was improperly admitted.

The court erred in charging the jury, if the assignors knew, at the date of the assignment, that the assignee was incompetent, it was evidence from which the jury might find the assignment made with intent to defraud.

The respondents claimed that it was proper to admit proof of the conveyance by Cazeau to Guerin. That proof of the manner in which the assignee transacted the business was proper. That the incompetency of the assignee was presumptive evidence of fraud in the assignment; citing Burd v. Smith, 4 Dall., 76; Reed v. Emery, 8 Paige, 417; Currie v. Hart, 2 Sandf. Ch., 353.

Inserting the paid up debt to Cummings, Seaman & Co., and giving it a preference, rendered the assignment void. Burrill on Assignments, 135; Webb v. Daggett, 2 Barb., 10; Ziedler v. Day, 2 Sandf., 594; Mackie v. Cairns, 5 Cow., 547; Grover v. Wakeman, 11 Wend., 187.

J. B. Brisbin, for appellant.

M. E. Ames and Sanborn & Lund, for respondents.

FLANDRAU, J.

This action is to recover the value of certain chattels alleged to have been wrongfully taken by the defendants from the plaintiff. The defense is, that the plaintiff is assignee of Louis Bartlett, Jr., and Firman Cazeau; that the assignment is fraudulent; that the defendants are creditors of the assignors; and that the taking was for their debt, and made under attachment duly issued and levied, &c. Upon the trial, the assignment was attacked as being fraudulent in fact, having been made to hinder and delay the creditors of the assignors. The first evidence that was introduced to show the fraudulent intent of the assignors came out on the cross-examination of the plaintiff. It was proved that the assignee was illiterate and could not read or write. The selection of an incompetent assignee is regarded in the law as a badge of fraud. The assignor having the choice of his asignee, without consultation with, or consent of, his creditors, must take care that he appoints a person competent to protect the rights of all parties interested under the assignment. If it appears that the selection of an incompetent assignee was made in order to allow the assignor to control the administration of the estate, then the assignment will be declared void, because such an intent on the part of the assignor would be a fraud upon his creditors. If it should appear that the assignee was incompetent, in fact, from any cause, but that his selection was not made from any improper motive on the part of the assignor, then the assignee would be subject to removal at the instance of a creditor of the estate, and a proper person would be substituted by the court to carry out the trust. The assignment would be sustained in such case, because of the absence of the vitiating element in its inception, to-wit, a fraudulent intent in the assignor. This intent, however, when it is not apparent on the face of the instrument, is always a question of fact, and must be determined by the evidence adduced. It does not necessarily follow, that because an assignee is illiterate and cannot read or write, that he was selected by the assignor for that reason, and with the fraudulent design of retaining control of the assigned property; yet if a jury should, upon that fact alone, so find, it would require a very strong array of counter facts to induce a court to disturb the finding. And should a jury vindicate the competency of the assignee, and the good faith of the assignor in his selection, notwithstanding his inability to read and write, it would be equally difficult to interfere with the verdict. The question, therefore, as to the validity of the assignment is upon the intent of the assignor, ascertainable not by any one fact or circumstance, but by every fact and circumstance that may throw light upon the transaction. If the fraudulent intent is sought to be established by proving the appointment of an assignee incompetent by reason of being illiterate, then any facts may be shown in contradiction of that fact, or its effect may be avoided by proof of a sufficient degree of intelligence and business capacity to justify the choice of the assignee, notwithstanding his want of scholarship; because a man may be fully capable of administering an estate and not know how to read or write; yet we admit that such in our opinion is not very often the case.

In answer to this proof, the plaintiff proposed to show that the assignee was possessed of a large property at the time of the assignment, which he was prevented from doing by the ruling of the court. There was no charge made by the defendants that the assignee was insolvent, which fact is generally a badge of fraud; had there been, it would have been competent for the plaintiff to show the contrary; but it is difficult to see how the proof of solvency could aid the defect of want of education, especially when the presumption is in favor of solvency, when nothing is shown to impeach the assignee in that respect. Blindness in an assignee is regarded as a badge of fraud on the part of the assignor who selects him. Cram v. Mitchell, 1 Sandf. Ch., 251. And so also of an assignee who was unfit to attend to business by reason of a lingering disease, which fact was known to the assignor. Carrie v. Hart, 2 Sandf. Ch., 353; Burrill on Assignments, 62. Both blindness and sickness stand upon the same footing, as badges of fraud, with ignorance, and might be rebutted by appropriate facts showing that their existence in the particular case did not disqualify. Yet, proof of solvency could in no manner mitigate these defects. The court properly rejected this offer.

The defendants had a right, of course, to reduce the value of the goods taken, in order to lessen the recovery against them. They asked the sheriff and the deputy how the goods sold at the sale on the execution. This, although by no means conclusive of their value, was one means of ascertaining it. It was known how much they sold for, and if the witnesses testified it was all they were worth, or nearly so, it shed some light upon the question of value. We see no error in the admission of this evidence. Had the plaintiff recovered a verdict for less than he claimed the goods to be worth, the evidence given by the defendants on the...