Schroder v. Tompkins

• Decision Date: 23 November 1893
• Docket Number: 8,935.
• Parties: SCHRODER v. TOMPKINS et al.
• Court: United States Circuit Court, District of Indiana

58 F. 672

SCHRODER v. TOMPKINS et al.

No. 8,935.

United States Circuit Court, D. Indiana.

November 23, 1893

Mark E Forkner and John M. Morris, for defendants.

BAKER District Judge.

This case is submitted on an agreed statement of facts, pursuant to section 553, Rev. St. Ind. 1881. It is agreed that the plaintiff is a citizen and resident of the state of Ohio, and that the defendants are citizens and residents of the state of Indiana; that the goods and chattels in controversy are of the value of $3,000 and upwards; that on and prior to October 4 1893, Frank Leon and Aaron Metzger were partners doing business under the name and style of Leon & Metzger; that they owned a manufactory of clothing, and dealt therein, and had a jobbing house, and operated the same, in Cincinnati Ohio, and had a branch retail store respectively in Muncie and New Castle, Ind., under the charge of Frank Leon, as a member of the firm of Leon & Metzger; that Frank Leon at the same time was a citizen and resident of Indiana, and has continued to be so until the present time, and Aaron Metzger at the same time was a citizen of Ohio, residing in Cincinnati, and has continued to be so until the present time; that said firm of Leon & Metzger at and prior to October 4, 1893, owned goods, wares, and merchandise in their business in said jobbing house and factory in Cincinnati, and in their branch stores aforesaid; that, being owners and in possession of said goods, they, both being present in Cincinnati as such partners in said city, did voluntarily execute and deliver to the plaintiff on the 4th day of October, 1893, a deed of general assignment of all their goods, wares, and merchandise, and all their partnership property and assets, which assignment was duly accepted by the plaintiff, who, on the said 4th day of October, 1893, filed said deed in the probate court of Hamilton county, Ohio, wherein the city of Cincinnati is located, and executed a bond conformably to the laws of Ohio for the faithful performance of his trust in the penal sum of $50,000, with surety to the approval of the court; that, pursuant to said assignment, Leon & Metzger surrendered to the plaintiff, on the 4th day of October, 1893, all of said property, of which the plaintiff took possession on the same day, and has remained in possession of all of said property; that the plaintiff has not filed said assignment, or a copy thereof, in the recorder's office in the county where said Leon resides; that at the time of said assignment the store in New Castle was in the possession of Cy. Guyer as agent of Leon & Metzger, who was notified by the plaintiff and Leon & Metzger to hold the same for the assignee, which he did until levied on by the sheriff as hereinafter stated; that the plaintiff, immediately after taking possession of said property, caused the same to be appraised according to the laws of Ohio; that at and long before said assignment Leon & Metzger were indebted to the firm of A. Bacharach & Co., of Philadelphia, Pa., in the sum of $1,095.75, for goods sold and delivered to Leon & Metzger at their store in Muncie for retail therein; that each member of said firm of A. Bacharach & Co. is, and long has been, a citizen and resident of Philadelphia, Pa.; that said deed of assignment provided for the pro rata payment and distribution of the proceeds of said trust property among all the creditors of Leon & Metzger without preference; that after said assignment, and after the assignee had taken possession of said goods thereunder, on the 18th day of October, 1893, and four days after the firm of A. Bacharach & Co. had notice and knowledge of said assignment and of the possession of said goods by the plaintiff as assignee, the said firm, declining to accept under said assignment, brought suit in the circuit court of Delaware county, Ind., against Leon & Metzger to recover the amount so due them, and as ancillary thereto they procured writs of attachment to issue to the defendants Tompkins and Sherry, as sheriffs of the counties wherein Muncie and New Castle are situated; that said writs were issued, and came to the hands of said sheriffs, respectively, on the 18th day of October, 1893, who, by virtue thereof, on October 21, 1893, levied upon and seized the goods in said branch stores so as aforesaid assigned to and in the possession of the plaintiff, and refuse to surrender them, or any part thereof, to him.

The sole question is whether the plaintiff has acquired a paramount title to the goods in controversy by virtue of the deed of assignment and the possession thereof taken thereunder. The deed of assignment in this case was not executed under the authority of any statute of Ohio relating to the transfer of property by insolvent debtors for the benefit of their creditors. The instrument is a voluntary conveyance executed in conformity with the principles of the common law, which is prevalent in that state. In Mayer v. Hellman, 91 U.S. 496, in speaking of the statute of Ohio on this subject, the court said:

'The statute of Ohio is not an insolvent law in any proper sense of the term. It does not compel, or in terms even authorize, assignments. It assumes that such instruments were conveyances previously known, and only prescribes a mode by which the trust created shall be enforced. It provides for the security of the creditors by exacting a bond from the trustees for the discharge of their duties. It requires them to file statements showing what they have done with the property, and affords in various ways the means of compelling them to carry out the purposes of the conveyance. There is nothing in the act resembling an insolvent law. It does not discharge the insolvent from arrest or imprisonment. It leaves his after-acquired property liable to his creditors, precisely as though no assignment had been made. The provisions for enforcing the trust are substantially such as a court of chancery would apply in the absence of statutory provision. The assignment in this case must, therefore, be regarded as though the statute of Ohio to which reference is made had no existence.'

In Johnson v. Sharp, 31 Ohio St. 611, in speaking of the legislation of that state on the subject of assignments, the court said:

'Nor is the title of an assignee of such nonresident debtor at all affected by the fact that the probate court of the county in which such assigned property may be located has assumed jurisdiction over the administration of such trust. The validity of such assignments is not, in any case, affected by this legislation, but only the mode of administering them; so that the validity of all such assignments must be determined by the general law in relation thereto; and the administration of those made by nonresident debtors would remain subject to the control of courts of equity.'

The deed of assignment in question is a valid conveyance under the common law of Ohio. It conveyed to the plaintiff a good title to all the personal property of the assignors in this state upon his acceptance of the trust and reducing the property into his possession, unless such conveyance conflicts with the positive law or declared public policy of Indiana. The jus gentium recognizes the right of disposition as an essential incident of the ownership of personal property; and wherever such property is located it is generally agreed that the title to it follows the domicile of its owner. 'Mobilia ossibus inhaerent.' A conveyance of it, valid according to the lex loci contractus, is ordinarily binding, and effectual to transfer the title to personal property wherever located. Barnett v. Kinney, 147 U.S. 476, 13 S.Ct. 403; Catlin v. Silver-Plate Co., 123 Ind. 477, 24 N.E. 250; Martin v. Potter, 11 Gray, 37; Warner v. Jaffray, 96 N.Y. 248; Green v. Van Buskirk, 7 Wall. 139; Law v. Mills, 18 Pa. St. 185; Story, Confl. Laws, 383, 390.

The principles above stated are applicable only to transfers or assignments of property which rest essentially on contract and are voluntary in the sense that they are the product of a will acting without legal compulsion. Property in a foreign state that has passed from an assignor to an assignee by a voluntary deed, and not by proceedings in invitum by process of law, is distinguished from like property in the hands of a receiver by operation of law, or by assignment under legal compulsion. Assignments of the latter class are generally held inoperative upon property not situated within the territory over which the laws that make, or compel the debtor to make, them have dominion. Involuntary assignments which are made under foreign insolvent laws have no...