United States v. Gotwals

• Decision Date: 21 August 1946
• Docket Number: 3288.,No. 3287,3287
• Parties: UNITED STATES v. GOTWALS et al. (two cases).
• Court: U.S. Court of Appeals — Tenth Circuit

169 ALR 619, 156 F.2d 692 (1946)

UNITED STATES v. GOTWALS et al. (two cases).

Nos. 3287, 3288.

Circuit Court of Appeals, Tenth Circuit.

July 19, 1946.

Rehearing Denied August 21, 1946.

Fred W. Smith, of Washington, D. C. (J. Edward Williams and Roger P. Marquis, both of Washington, D. C., and Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for appellant.

Malcolm E. Rosser, of Muskogee, Okl., for appellees.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

The question in these cases is whether under 31 U.S.C.A. § 191, the United States is entitled to have its claim against H. G. House satisfied out of a fund which he assigned to Charles P. Gotwals, one of the appellees herein.

Section 191 provides that: "Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed."

The facts in the case are substantially these: The heirs of Eastman Richards, a full-blood Creek Indian, brought an action against H. G. House for an accounting. The United States intervened in this action.¹ A number of other actions of like nature were pending against House. The law firm of Gotwals, Killey and Gibson represented House in all this litigation. During all the time this litigation was pending, the case of In re Jackson Barnett, another Indian case, was also pending in the federal courts.² House was one of the attorneys of record in that litigation. On October 12, 1942, the trial court filed findings of fact and conclusions of law in the House case, clearly indicating that a judgment would be entered in favor of the United States and against House, for $76,860.84. House and Charles Gotwals were present at the time of the making of these findings of fact and conclusions of law. On October 27, 1942, House executed the assignment in question, assigning to Gotwals all fees due or to become due him in the Barnett case. Thereafter, on November 7, 1942, judgment was entered in the House case in favor of the government for $76,860.84. Execution was issued on this judgment and was returned with the notation, "Nothing found."

On June 23, 1943, the trial court entered judgment in the Barnett case, fixing the fees of the various attorneys who had participated in that litigation. House's fee in that case was fixed at $13,582.79. Thereafter the United States, acting through the Secretary of the Interior, paid into the registry of the court a sum sufficient to satisfy the judgment for attorneys' fees, with the exception of the amount due House. This sum was withheld. The government filed substantially identical petitions in both the House and the Barnett cases, in which it was alleged that House was insolvent at the time he made the assignment to Gotwals; that at such time he was aware of the findings of fact and conclusions of law which had been made in the House case which established his liability to the government; that the purpose of the assignment was to defraud the government as a judgment creditor; and that the United States was entitled to priority to the fund due House in the Barnett case, in payment of its claim. The prayer of the petitions was that the United States be allowed a credit in the sum of $13,582.79 in the Barnett case, and that House be allowed a like credit on the judgment in the House case. Gotwals asserted his claim under the assignment and denied the preferential claim of the government to the amount due House in the Barnett case. The trial court sustained the validity of the assignment, denied the claim of the government, and entered judgment accordingly. The government has appealed.

The charge of fraud in the execution of the assignment was not sustained. There was ample consideration for the assignment to Gotwals. On the other hand, it is equally clear that the purpose of the assignment was to prefer Gotwals over the United States in the application of the payment of the sum in question as between creditors. House testified that he did not have sufficient property to pay Gotwals and also to pay the government's judgment, and that he wanted Gotwals to have his money in preference to the government.

The statute does not create a lien in the government. It merely entitles it to priority in the payment of its claim when the conditions of the statute have been brought about. Whether the preferential status of the government was brought into focus under the statute in question depends upon whether House was insolvent, and if he was, whether the assignment was a voluntary assignment within the meaning of the Act, and if it was not, whether the assignment constituted an act of bankruptcy as contemplated by the statute.

The mere inability of a debtor to discharge his debts in the ordinary course of business does not constitute insolvency under the statute. A debtor is insolvent within the meaning of the statute if, not having sufficient property to pay all his debts, he either makes a voluntary assignment thereof or commits an act of bankruptcy. House by his own admission did not have sufficient property to pay all his debts. It is also quite clear by his own testimony that he assigned substantially all his property, subject to the payment of his debts, or that, in any event what remained was wholly insufficient not only to pay the balance of what was due Gotwals for services which had been rendered or which were to be rendered, but also to pay any portion of the government's judgment. The assignment was not the voluntary assignment contemplated by the statute, because it was not made or intended to be made for the benefit of his creditors.³ But the assignment to Gotwals with intent to prefer him at a time when House was insolvent within the meaning of the bankruptcy act constituted an act of bankruptcy.⁴ The factors which brought the statute into play therefore existed when House, while insolvent, transferred substantially all his property subject to the payment of his debts to Gotwals, with the admitted intent to prefer him over his other creditors and the government was therefore entitled to the payment of its claim out of the assigned assets in preference to Gotwals.

It is clear from what has been said that if a bankruptcy proceeding had been instituted against House or if a general assignment had been made of all of his property to one charged with the payment of his debts, the government would have been entitled to the satisfaction of its claim in preference to the claim of Gotwals. But it is urged that the government may establish its right of priority only in such proceedings, and may not assert it in the manner attempted herein. No case is cited to support this contention and our search has failed to reveal one in which the precise question was in issue.

The cases relied upon to establish this contention, are all cases in which the debtor's property had been given to another charged with its administration for his creditors, either by some form of assignment or other liquidation proceeding. While some of these cases contain general statements which considered alone could be construed to imply that the government's claim to priority must be asserted in such a proceeding, such expressions must be considered in the light of their factual setting. As stated by the Supreme Court in Bramwell v. United States Fidelity & Guaranty Co., 269 U.S. 483, 489, 46 S.Ct. 176, 177, 70 L.Ed. 368: "It is a rule of universal application that general expressions used in a court's opinion are to be taken in connection with the case under consideration." None of these cases turned upon the decision of the precise point now urged.

The purpose of the statute is to give priority of payment to the government over all other creditors in situations covered by the act. It has been held without exception that the act is to be liberally construed to effectuate that purpose.⁵

It is of course obvious that where the government seeks to enforce its right of priority as against property in the possession of a third party, it must take appropriate steps to bring the property before a tribunal having jurisdiction to administer it between conflicting claimants. But to hold that the government...