Newtown Sav. Bank v. Lawrence
Citation | 41 A. 1054,71 Conn. 358 |
Court | Supreme Court of Connecticut |
Decision Date | 04 January 1899 |
Parties | NEWTOWN SAV. BANK v. LAWRENCE et al. |
Appeal from superior court, New Haven county; George W. Wheeler, Judge.
Suit by the Newtown Savings Bank against Gordon B. Lawrence and others to foreclose a lost and unrecorded mortgage. There was a decree for plaintiff, and defendants appeal. Reversed.
The court found the following facts:
Paragraph 4 of the complaint was as follows: "(4) Since the execution and delivery of said deed, and since the plaintiff so sent the same to Waterbury for record, and before the plaintiff had discovered that said deed had been lost and had not been recorded, as alleged in paragraph 3, to wit, on the —— day of ——, 18—, the said Gordon B. Lawrence made an assignment of all his property, including said real estate so mortgaged to the plaintiff, to the defendant C. H. Hart, as trustee in insolvency under the statute of the state of Connecticut in such case made and provided, and said Hart has qualified and is now acting as such trustee." The defendant Kelly in his answer admitted that the defendant Hart was duly appointed trustee of the estate of Lawrence, and was duly qualified as such trustee, and alleged that he had no knowledge or Information sufficient to form a belief as to the other matters aleged in paragraph 4. The defendant Hart, in answer to paragraph 4 of the complaint, admitted that Lawrence was adjudged to be an insolvent debtor upon the petition of a creditor of said Lawrence, and that he (Hart) was appointed trustee of his estate. The plaintiff replied to that part of Hart's answer that, except as admitted in the complaint, it had no information sufficient to form a belief.
Edward P. Cole, for appellants.
Robert E. De Forest, for appellee.
HALL, J. (after stating the facts). Neither of the defendants admitted the allegation of the complaint that Hart was appointed trustee under a voluntary assignment of Lawrence. Both defendants admitted that he was duly appointed trustee. Further, as to his appointment, the defendant Kelly alleged that he had no information sufficient to form a belief; while the defendant Hart, himself the trustee, alleged that he was so appointed upon the petition of a creditor of Lawrence. Under these pleadings, the burden was upon the plaintiff to prove that the proceedings in insolvency were voluntary, had that alleged fact been a material one. Practice Book, p. 16, rule 4, § 4. In the absence of any evidence upon that point, it could not properly be assumed that the assignment was voluntary. From the fact that no proof was offered, it would rather appear that the plaintiff was satisfied to accept the statement in the trustee's answer that his appointment was under compulsory proceedings in insolvency.
But we do not regard it as material to the rights of the parties in this case whether the proceedings in insolvency were voluntary or compulsory. The alleged voluntary assignment of Lawrence was "of all his property, including the real estate so mortgaged to the plaintiff." A voluntary assignment in insolvency must, under the statute, embrace all the property of the assignor, with certain exceptions not material to this case. Gen. St. § 501. By section 507 of the General Statutes, the trustee is appointed "to take possession of, manage, and dispose of" all the debtor's property, with certain exceptions, and all the property owned by the debtor "at the time of filing such petition," with said exceptions, vests in such trustee. If under a voluntary assignment the title of the trustee is by force of the common law, and in involuntary insolvency by force of the statute, he takes in either ease the same title to the same estate. In neither case is the power of the trustee to take or recover, as a part of the insolvent's estate, personal or real property held or claimed by others, limited by the power of the debtor over such property. Preferences, sales, and conveyances actually or constructively fraudulent, and which could not be avoided by the insolvent, may be set aside by the trustee appointed under voluntary or Involuntary proceedings. Shipman v. Insurance Co., 29 Conn. 245; Gaylor v. Harding, 37 Conn. 508. In case of a voluntary assignment in insolvency, the right to reclaim property fraudulently sold is conveyed to the trustee by an assignment to him of all the debtor's property. Filley v. King, 49 Conn. 211. There seems to be no difference in principle between the power of the trustee in such a case and that of a trustee under a general assignment in insolvency who is seeking to hold land claimed by the debtor's grantee under an unrecorded deed, provided such deed is invalid as against such trustee. Whether we regard him as an agent of the debtor, of the creditors, or of the law, we think the trustee in this case is clothed with the same power, and charged with the same duty, by our insolvent law, to take and dispose of the land in...
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