Hamilton-Brown Shoe Co. v. Mercer
| Decision Date | 02 February 1892 |
| Parties | HAMILTON-BROWN SHOE COMPANY, Appellee, v. JOHN M. MERCER, Intervenor, Appellant |
| Court | Iowa Supreme Court |
THURSDAY FEBRUARY 4, 1892.
Appeal from Des Moines District Court.--HON. J. M. CASEY, Judge.
ACTION upon an account, aided by an attachment. There was a judgment for the plaintiff, and the intervenor appeals.--Reversed.
Judgment, on the plaintiff's appeal, AFFIRMED; on the appeal of the intervenor, Mercer, REVERSED.
Geo. S Tracy and Newman & Blake, for appellant.
Dodge & Dodge and A. H. Stutsman, for appellee.
It is urged that the assignments of error are not sufficiently specific to justify their consideration. As to some of them, the objection is well taken; but as to an instruction refused, and alone to be considered, we think the assignment sufficient.
II. Catherine Byrne is the defendant in this action, against whom the plaintiff company brought the action on an account for six hundred and forty-seven dollars and seventy cents, aiding the proceeding by an attachment on different grounds under the statute, showing a fraudulent disposition of her property. The defendant Byrne answered, admitting, in substance, the account of the plaintiff, making certain denials as to the disposition of her property for which the attachment was issued, and averring that on the thirtieth of November, 1889, she made a general assignment of her property for the benefit of her creditors to John M. Mercer, and on that date surrendered her property to him, and, in effect, denying her ownership of the property because of the assignment. She asked for damage because of the wrongful suing out of the attachment. A demurrer to the answer was sustained, and there was no further pleading by her nor exceptions to the ruling on the demurrer.
John M. Mercer, as assignee, filed his petition of intervention, claiming the goods by virtue of the assignment and his possession thereof at the time of the seizure by virtue of the attachment. The plaintiff answered the intervention petition, putting in issue the averments as to the assignments; averring that prior to November 30, 1889, Catherine Byrne was engaged in the retail boot and shoe business, and indebted to the plaintiff and others, and that in making the assignment she acted with a fraudulent purpose to aid her relatives in presenting unjust claims against her estate, and to defraud her just creditors. Disregarding the question of fraud, the evidence without dispute shows that John M. Mercer was before the commencement of this suit duly appointed, qualified and acting as the assignee of the estate of the defendant, and as such was in possession of the goods seized by virtue of the attachment. The intervenor asked the following instruction, which the court refused, and the refusal is the basis of an assignment on this appeal:
The question thus presented meets with earnest contention by the parties, and is certainly important as bearing upon the general practice of the state. The briefs of counsel and an examination of the cases cited indicate a decided conflict of authority on the question in other states; but it is largely accounted for because of the different statutory provisions under which the decisions were made. After a careful examination, we reach the conclusion that the court erred in refusing the instruction, and will state our reasons therefor. It is likely true, as counsel seem to think, that much depends upon whether or not the property, when taken under the attachment, was in custody of the law, and, if so, much of the contention in support of the present proceeding is removed. See, in support of such a rule, Lehman v. Rosengarten, 23 F. 642, which case cites Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390; Krippendorf v. Hyde, 110 U.S. 276, 4 S.Ct. 27, 28 L.Ed. 145; and Freeman v. Howe, 65 U.S. 450, 24 How. 450, 16 L.Ed. 749. Whether property is in custody of the law or in that of a trustee, so as to be liable to collateral attacks, depends largely upon the statutory provisions under which the trustee acts in the discharge of his duties. By the appellee we are cited to Wait on Fraudulent Conveyances [2 Ed.] section 316, wherein it is said: "The property in the possession of an assignee is not in custodia legis, for the reason that the assignee is not an officer of the court, but is a trustee, bound to account according to the terms of the instrument; and his authority depends upon the validity of the assignment, and is not conferred by the court." This may be said to be a fair statement of the facts under which, and the reasons why, such property is said not to be in the custody of the law. Even under such a statement the authorities are not harmonious. The text above quoted takes for its support Adler v. Ecker, 1 McCrary 256, 2 F. 126, and the decision is based on the Minnesota statutes. The supreme court of Minnesota, in the case of Second Nat. Bank of St. Paul v. Schranck, 43 Minn. 38, 44 N.W. 524, in construing the same statute, says: "When the assignment is perfected, and to some extent at least prior thereto, its entire subject-matter,--all that is involved,--including the assigned estate, passes under the jurisdiction of the district court ipso facto, immediately, and without any further act, the assigned property is in the custody of the law." The same rule is announced in Wilson v. Aaron, 132 Ill. 238, 23 N.E. 1037, and in Scott v. McDaniel, 67 Tex. 315, 3 S.W. 291. The conclusions are announced under statutes certainly not more favorable to such a conclusion than ours. Our Code contains this somewhat...
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