In re Dalpay

6 L.R.A. 108, 43 N.W. 564, 41 Minn. 532, 1889 Minn. LEXIS 409

• Court: Supreme Court of Minnesota
• Decided: October 29, 1889
• Status: Published

Opinion

Vanderburgh, J.

The facts upon which the court made the order appealed from appear in the stipulation of the parties in the record. The appellant’s contention is that no case was made for the appointment of a receiver in these proceedings, on the ground that the property transferred to certain creditors by him, and securing to them a preference, was situated in Dakota territory, where the assignment thereof was made, and that by the laws of that territory such transfer is recognized as lawful. Among the assigned property, however, was a policy of insurance issued to the appellant by the Syndicate Insurance Company of Minneapolis, in this state, covering property owned by appellant in Dakota, which had previously been destroyed by fire; so that the claim due or to become due under such policy passed to the creditors so preferred, being the firm of Wyman, Mullin & Co. of Minneapolis. At the time of this alleged transfer, the appellant resided and had his domicile in this state. The insurance company is a local corporation, doing business in the same state; and the debt or claim in question is subject to be reached by judicial proceedings here. The petition in the insolvency proceedings is made by and on behalf of other creditors residing in and doing business in this state, and is rested upon the alleged preference so given to Wyman, Mullin & Co.; and it is claimed that the transfer was fraudulent under the insolvency act, and that the order appointing a receiver herein was therefore justified.

As between the parties to the assignment, if valid by the lex loci contractus, it would be upheld here. It would also be sustained against creditors, if valid where made, and not in contravention of our laws, both as to property situated in the foreign jurisdiction and property within this state. But the courts of this state cannot be required to give effect to an assignment or transfer of property within it, or of debts due to its citizens, which is found to be contrary to the policy and laws of the state. To uphold the opposite doctrine would be to encourage fraudulent contrivances to defeat the operation of our insolvent or collection laws. Zipcey v. Thompson, 1 Gray, 243; Foster v. Goulding, 9 Gray, 50. A different rule, which has no application in this case, is suggested as to citizens of the jurisdiction where the assignment is made, who are seeking a remedy against property in another state. May v. Wannemacher, 111 Mass. 202, 209. As a general rule, a debt or chose in action, being incorporeal, is deemed to follow the person of the owner, and to be present with him; but for some purposes the courts treat such property or interests as having a situs at the place of the owner’s domicile. It is so for the purposes of taxation, and, for reasons already stated, in insolvency or other proceedings by creditors. Smith v. Chicago & N. W. Ry. Co., 23 Wis. 267; Whart. Confl. Laws, § 363. The facts in the case are therefore sufficient to support the order appointing a receiver, which is accordingly affirmed.