Redman v. Hurley

• Decision Date: 30 December 1896
• Citation: 89 Me. 428,36 A. 906
• Parties: REDMAN v. HURLEY.
• Court: Maine Supreme Court

36 A. 906

89 Me. 428

REDMAN

v. HURLEY.

Supreme Judicial Court of Maine.

Dec. 30, 1896.

(Official.)

Appeal from supreme judicial court, Hancock county, in equity.

Bill by John B. Redman against Jeremiah Hurley. Decree for plaintiff, and defendant appeals, and moves for a new trial, and excepts. Appeal dismissed. Decree affirmed.

This was a bill in equity, under which the plaintiff, as assignee in insolvency of Colin McKenzie, sought to recover as assets of said McKenzie an undivided half of the "Eagle Hotel," so called, at Bar Harbor, together with an undivided half of the furniture in the hotel.

The defendant claimed title to the same, it being personal property, and situated on leased land, by a bill of sale to him from the said McKenzie, dated November 7, 1892, and recorded November 9, 1892, in the town of Eden.

The plaintiff claimed that the transfer was void, for the reason that it was made by McKenzie within six months before the filing of the petition in insolvency against him, and that said McKenzie, at the time of the alleged transfer, was either insolvent or acting in contemplation of insolvency, and made the alleged transfer to prevent the property from being distributed among his creditors under the insolvent laws of Maine. And also that the defendant at the time had reasonable cause to believe that said McKenzie was either insolvent or acting in contemplation of insolvency, and that the transfer was thus made to him to prevent the property from coming to the assignee.

Bill in Equity.

"To the Supreme Judicial Court, in Equity: "John B. Redman, of Ellsworth, Hancock county, Maine, assignee in insolvency of the estate of Colin McKenzie, of said Ellsworth, insolvent debtor, complains against Jeremiah Hurley, of said Ellsworth, and says:

"First. That he is the assignee of Colin McKenzie, insolvent debtor, duly appointed as such assignee by the judge of insolvency within and for the county of Hancock on the 10th day of May, 1893, on the petition of the creditors of said debtor, filed in said court March 17, 1893, as appears by the records of said court of insolvency "Second. That said Colin McKenzie, on the 7th day of November, 1892, was the owner of one undivided half of a three-story frame building situated on West street, in the village of Bar Harbor, town of Eden, Hancock county, Maine, and known as the 'Eagle Hotel,' together with one undivided half of the furniture and fixtures belonging to said building, and all of great value, to wit, the value of two thousand dollars.

"Third. That on the 7th day of November, 1892, the said Colin McKenzie being then insolvent, and acting in contemplation of insolvency, which said 7th day of November was within six months before the filing of the petition against him, the said Colin McKenzie, the said insolvent debtor, did make a certain transfer and conveyance of said property described in the foregoing paragraph second to said Jeremiah Hurley, all of which appears by a certain bill of sale of that date, recorded November 9, 1892, in volume 9, page 279, of the Mortgage Records of the Town of Eden; an attested copy of the record of said bill of sale to be here in court produced.

"Fourth. That said transfer and conveyance of said property was made by the said Colin McKenzie, he then being insolvent, and acting in contemplation of insolvency, with a view to prevent said property from coming to his assignee, and to prevent the same from being distributed under Revised Statutes, c. 70, of the laws of the state of Maine, and to defeat the object of, and to impair, hinder, impede, and delay the operation and effect of, the provisions of said chapter 70 of the Revised Statutes of Maine; and that said Jeremiah Hurley, at the time of the taking and receiving said transfer and conveyance, had reasonable cause to believe the said Colin McKenzie to be insolvent, and acting in contemplation of insolvency, and that such transfer and conveyance was made with a view to prevent said property from coming to his assignee, and to prevent the same from being distributed under chapter 70 of the Laws of Maine, and to defeat the object of, and to impair, hinder, and impede and delay the operation and effect of, the provisions of said chapter.

"Wherefore the said plaintiff, believing that he is entitled to relief in equity, prays:

"(1) That a subpoena, in usual form required, issue unto said Jeremiah Hurley, commanding him to appear at a certain day and make full answer to this bill, but not under oath, answer under oath being hereby waived.

"(2) That said transfer and conveyance, as set forth in paragraph second, be declared by this court to be void, and that the plaintiff recover of the defendant said property as assets of the insolvent.

"(3) That said defendant, by an order and decree of this court, be prohibited from exercising any acts of control over said property whatever.

"(4) That the said defendant may be ordered and decreed by this court to make, execute, and deliver to your complainant a sufficient conveyance of said property.

"(5) That an account may be taken of the rents and profits which said defendant has received from said property so transferred and conveyed to him, and that he may be ordered to pay over such rents and profits to the plaintiff.

"(6) That such further orders and decrees may be made as the nature of the case may require.

"Dated this 25th day of September, A. D. 1893.

"John B. Redman, Assignee.

"A. W. King, Solicitor."

The defendant answered with a general denial, and asked to have the issues of fact submitted to a jury. The following are the issues passed upon by the jury, with their findings:

"(1) Was Colin McKenzie acting in contemplation of insolvency in making the transfer to the defendant of an undivided half of the Eagle Hotel, dated November 7, 1892? Answer. Yes.

"(2) Was said transfer...