Blackford v. Westchester Fire Ins.

101 F. 90, 41 C.C.A. 226, 1900 U.S. App. LEXIS 4379

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 19, 1900
• Docket: No. 1,314
• Status: Published

Opinion

CALDWELL, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

In the view we take of this case it is unnecessary "to determine . whether the assignment of the policy was in fact an assignment for the benefit of creditors, and subject to the provisions of the statute governing such assignments. Granting it was such an assignment, it would not be absolutely void, but only voidable as against the creditors of the assignor. If they see proper to waive the defects, and are willing to accept the benefits thereof, no one else can complain. This question was before this court in Railway Co. v. Fuller, 36 U. S. App. 456, 72 Fed. 467, 18 C. C. A. 641, which also arose in the Indian Territory. In that case the assignee for the benefit of creditors brought his action as such assignee to recover from the railway company the value of assigned property destroyed by fire through' the negligence of the railway company. The defense in that case, as in this, was that the assignment.was void; but this court held that the assignment was merely voidable as against the creditors of the assignor who elected to attack it, and was valid and unimpeachable as against the assignors, their debtors, and all other creditors who did not elect to disaffirm and avoid it, and that the railway company, a debtor of the assignor, could not successfully attack it on the ground that it was voidable as to creditors. And to the same effect are Rohrer v. Turrill, 4 Minn. 407 (Gil. 309); Sheridan v. Mayor, etc., 68 N. Y. 30; Coe v. Hinkley, 109 Mich. 608, 67 N. W. 915; Marshall v. Shibley, 11 Kan. 114; Norton v. Kearney, 10 Wis. 443. Falconer v. Hunt, 39 Ark. 68, and Thatcher v. Franklin, 37 Ark. 64, which are relied upon to sustain the decision of the United States court of appeals in the Indian Territory, have no application to the case at bar. In both of those cases the contest was between the assignee and creditors of the assignor or officers who represented them. As long as no creditor of the assignor questions the validity of the assignment, a debtor of the assignor cannot do so. Until the assignment is set aside by a court of competent jurisdiction, the assignee has the right to collect the assets assigned to him, and his quittance to a debtor who paid the money in good faith would be a complete bar to any other action by any other party. Even payments to beneficiaries made by an assignee under a,n assignment which is thereafter set aside as fraudulent will entitle him to credit therefor, and he will not be compelled to account a second time for money so paid. Riggs v. Murray, 2 Johns. Ch. 565; Cullumb v. Read, 24 N. Y. 505, 515; Hunt v. Weiner, 39 Ark. 70, 77. The judgment of the United States court of appeals in the Indian Territory is reversed, and that of the United States court for the Xorthern district of the Indian Territory in favor of the plaintiff in error affirmed.