Sanborn v. Wilder

• Decision Date: 30 July 1897
• Parties: SANBORN v. WILDER et al.
• Court: New Hampshire Supreme Court

41 A. 172

68 N.H. 471

SANBORN

v. WILDER et al.

Supreme Court of New Hampshire. Rockingham.

July 30, 1897.

Exceptions from Rockingham county.

Bill in equity by George W. Sanborn, as assignee in insolvency of the estate of William W. Wilder, against William W. Wilder and David P. Wilder, alleging that a sale made by William of his interest in the partnership property of Wilder & Son, to his co-partner, David, was fraudulent as to creditors, and praying that the latter be required to account. Facts found by a referee: Proceedings in insolvency against William were commenced May 18, 1894, and the plaintiff was appointed assignee June 16, 1894. In 1887, William gave his son David a one-half interest in a country store, and formed a partnership with him, under the firm name of Wilder & Son. August 5, 1893, William made a sale of his interest in the firm to David, but the sale was not made in good faith. There was no apparent change in the possession or control of the visible property of the company. The business was conducted after the sale in the same name, in substantially the same manner, and by the same persons as before. Debts to the amount of more than $16,000 were proved against William's estate. They all accrued after August 5, 1893, and consisted of his indorsements of the notes of Bartlett & Peaslee for their accommodation. His assets, consisting almost entirely of the notes of that firm, were less than $5,000 Bartlett & Peaslee were also in insolvency, and debts, including their notes to William, to the amount of $35,000, were proved against them. Their assets were about $6,700. Subject to the defendants' exception, the referee received in evidence the schedule of his assets and of his creditors filed in the probate court by William, and also Bartlett & Peaslee's schedule of assets. Exceptions overruled.

Wiggin & Fcrnald and Louis G. Hoyt, for plaintiff.

Eastman, Young & O'Neill, for defendants.

PIKE, J. All the estate of an insolvent debtor, not exempt from attachment, including property sold or transferred by him, if the sale or transfer is fraudulent as to creditors, vests in the assignee. Pub. St. c. 201, §§ 6, 26. The question whether the sale, as a matter of law, was void as against the creditors of William, because there was no apparent change in the possession of the visible property of the firm (Coburn v. Pickering, 3 N. H. 415), need not be considered, since it is found that the sale was not made in good faith, or, in other...