Walter Brashear v. Francis West, Thomas Willing Henry Nixon John Nixon Henry Nixon, Samuel Mifflin John Lapseley Francis West Francis West, Henry Nixon John Nixon Henry Nixon, Samuel Mifflin John Lapseley Francis West v. Walter Brashear

• Decision Date: 01 January 1833
• Citation: 32 U.S. 608,8 L.Ed. 801,7 Pet. 608
• Parties: WALTER BRASHEAR, Appellant, v. FRANCIS WEST, THOMAS M. WILLING and HENRY NIXON, Executors of JOHN NIXON, deceased, and HENRY NIXON, SAMUEL MIFFLIN and JOHN LAPSELEY, Assignees of FRANCIS WEST, Appellees. FRANCIS WEST, HENRY NIXON, surviving executor of JOHN NIXON, deceased, and HENRY NIXON, SAMUEL MIFFLIN and JOHN LAPSELEY, Assignees of FRANCIS WEST, Appellants, v. WALTER BRASHEAR, Appellee
• Court: U.S. Supreme Court

32 U.S. 608

7 Pet. 608

8 L.Ed. 801

WALTER BRASHEAR, Appellant, v. FRANCIS WEST, THOMAS M. WILLING and HENRY NIXON,

Executors of JOHN NIXON, deceased, and HENRY NIXON,

SAMUEL MIFFLIN and JOHN LAPSELEY, Assignees of

FRANCIS WEST, Appellees.

FRANCIS WEST, HENRY NIXON, surviving executor of JOHN

NIXON, deceased, and HENRY NIXON, SAMUEL MIFFLIN and

JOHN LAPSELEY, Assignees of FRANCIS WEST, Appellants,

v. WALTER BRASHEAR, Appellee.

January Term, 1833

APPEALS from the Circuit Court of Kentucky. These cases were argued by Bibb, for the appellant, Walter Brashear; and by Sergeant and Peters, for the appellees.

MARSHALL, Ch. J., delivered the opinion of the court.

These are appeals from a decree pronounced in the court of the United States for the seventh circuit and district of Kentucky, on a bill filed by Walter Brashear, on which an injunction was awarded to stay proceedings on two judgments obtained against him in that court, by Francis West. The final decree perpetuated the injunction as to the sum of $4011.68, the supposed amount of a judgment obtained against the complainant, as special bail for West, and dismissed the bill as to the residue, with ten per cent. damages thereon. Both parties have appealed to this court.

Francis Brashear, the plaintiff, a resident of Kentucky, being in Philadelphia, executed two notes, on the 28th of February 1807, to Francis West, a citizen of Philadephia, for $3527.82 each, payable fifteen months after date. On the 13th of July 1808, he executed a paper writing, in Kentucky, acknowledging the balance of an account due from himself to West amounting to $2147.76. The two notes, executed in February 1807, were assigned, soon after their date, to John Nixon, of Philadelphia, as collateral security for a debt due from West to him.

On the 21st of April 1807, West assigned all his estate to trustees, to be sold, and the money paid, first, to certain preferred creditors, and afterwards, to his creditors generally; with a proviso, that no dreditor should be entitled to receive any dividend, who should not, within ninety days from the date of the deed, execute a release of all claims and demands upon the said Francis West, of any nature or sort whatsoever. The plaintiff was also indebted to James Latimer, of Philadelphia, to whom he consigned a quantity of ginseng, with instructions to a proviso, that no creditor should be his own debt, to certain other creditors of the consignor, pro rata.

On the 10th of December 1808, James Latimer, to prevent other creditors, as he alleges, from obtaining a prior lien on the property in his hands, sued out a foreign attachment against the effects of Brashear, summoning himself as garnishee, and requiring bail in the sum of $8000. He gave immediate notice of this proceeding to Brashear. Early in the year 1809, he took a large part of the ginseng to himself, as purchaser, at six months credit; which he shipped, on his own account, to China, in March of that year. In the following May, he shipped the residue, on account of himself and William Redwood.

On the 11th of March 1809, Francis West sued out a foreign attachment, to the use of his assignees, against Brasher, and summoned Latimer as garnishee. The process was executed the 7th of April. On the 23d of September 1809, an attachment was sued out by Nixon's executors, which was returned executed, on the 9th of October. The attachments sued out in the name of West, by his assignees, and by Nixon's executors, were prosecuted to judgment.

In August 1811, James Latimer became insolvent, and assigned all his property for the benefit of his creditors. His debt to Brashear amounted to $4985.35; no part of which could be collected, his whole estate being absorbed by preferred creditors.

Suits were instituted, in the name of Francis West, on the notes assigned to John Nixon, and on the acknowledged account herein-before mentioned, in the circuit court of the United States for the district of Kentucky, and judgments obtained thereon. A bill was filed by Walter Brasher to be relieved from these judgments. The bill alleged, that the assignment to Nixon, and also that to Mifflin and others, trustees for general creditors, were fraudulent and void. It also alleged, that in September 1808, the plaintiff had become special bail for the said Francis, in a suit instituted against him in one of the courts of Kentucky, by a certain George Anderson, in which judgment was obtained against him, and afterwards against the plaintiff, as his special bail, for the sum of $4011.68. That on the 3d day of November 1808, the said Francis West received for the plaintiff $120, from the commissioner of loans in the city of Philadelphia, on account of the claim of William Bush; to which the plaintiff was entitled. And the said Francis West was responsible for the money lost by the plaintiff, in the hands of James Latimer; that loss having been caused by the attachments sued out to attach his effects in the hands of the said Latimer, and by the negligent and illegal manner in which the said attachments were prosecuted.

The answers admit, that the assignment to Nixon was made for the purpose of securing a debt due to him, amounting to rather more than $2000. They insist, that the assignment to Mifflin and others, for the benefit of the creditors of West, was fair and legal; and that Brashear had notice of it, before he became special bail for West, at the suit of Anderson. They contend, that the attachments were legal, and were conducted regularly, and without fraud.

James Latimer, who was sworn as a witness, deposes, that he shipped part of the ginseng, on his own account, before the attachments were laid by the assignees of West; and that he shipped the residue, after the attachment sued out by Mifflin and others, trustees for the creditors, had been served. He says, there was not any collusion, agreement or consent between the executors of Mr. Nixon, or the assignees of Mr. West and himself, that the property or money attached should remain in his hands, should be shipped abroad, or used or disposed of in any way, other than the consent of the assignees of Mr. West, that the ginseng might be sold; which consent was after their attachment, and before that of Mr. Nixon's executors; nor was there any consent on the part of the said assignees or executors, to any delay or procrastination of payment on his part.

The court admitted and allowed the claim to a set-off for the money paid by the plaintiff, as special bail for West, at the suit of Anderson, but rejected the other claims.

It is admitted, that Nixon's executors have no interest in the notes assigned to their testator, beyond the debt intended to be secured; and to that extent, their claim cannot be controverted. The suggestions made in the bills against it, are unsupported; and are denied in the answer.

I. The first inquiry is, into the validity of the general assignment to Mifflin and others, trustees for the creditors of West. This instrument conveys to Samuel Mifflin, Samuel Lapseley and Henry Nixon, all his estate, real, personal and mixed, in trust to sell the same, as soon as conveniently may be, and to collect all debts due to the said West, and to pay and discharge the debts due from him, first, to certain preferred creditors, and afterwards, to creditors generally; 'provided, nevertheless, that none of the above-described creditors shall be entitled to receive any part or dividend of the property hereby conveyed, or its proceeds, who shall not, within ninety ___ days from the date hereof, sign and execute a full and complete release of all claims and demands upon the said Francis West, of any nature or sort whatsoever.' This deed was executed on the 21st day of April 1807, was acknowledged before the mayor of the city of Philadelphia, on the 22d, and recorded in the proper office of the city and county, on the 27th of the same month. Its validity appears never to have been questioned in the state of Pennsylvania. The objections made to it in ar gument are 1. That the creditors were not consulted. 2. That they do not appear to have assented to the deed. 3. That possession was not delivered. 4. That the assignment is in general terms. 5. That it excludes all creditors who shall not, within ninety days, execute a release of all claims and demands on the said Francis West, of any nature or sort whatsoever.

1. It is not necessary to the validity of a deed of assignment, that creditors should be consulted, though the propriety of pursuing such a course will generally suggest it, where they can be conveniently assembled. But be this as it may, it cannot be necessary, that the fact should appear on the face of the deed. Had it been material, it ought to have been suggested in the bill; the fact would then have been put in issue, and might have been proved.

2. The same answer may be given to the second objection. The bill does not allege the refusal of the creditors to assent to the deed of assignment; that fact is not put in issue. The acceptance of the trust by the trustees, and the acquiescence of the creditors, for more than twenty years, afford presumptive evidence in favor of their assent; and that is sufficient, in a case in which it is not made a subject of direct inquiry by the pleadings.

3. The real estate passed by delivery of the deed. The claims on Brashear were not objects of delivery; they could be assigned only in equity; and notice, when given, consummated the assignment. The question of delivery is not made in the proceedings; it is not alleged, that West retained possession of any part of the property conveyed in the deed. Fraud may be given in evidence, but is not to be presumed.

4. It is also objected, that the assignment is in general terms, and that no schedule of the property is annexed. That a general assignment of all a man's property is, per se, fraudulent, has never been alleged in this country. The right to make it results from...