In re Myers

17 F. Cas. 1097

• Court: U.S. Circuit Court for the District of Maryland
• Decided: July 1, 1871
• Status: Published

Opinion

BOND, Circuit Judge.

So far as the charge of the petition that Myers procured his property to be taken upon legal process is concerned, it seems to me it is easily settled The proof is pretty clear that until Myers came into possession of the trust property he had none of his own, or at least but little, and even if he had caused the petition on the part of his cestuis que trust to be filed, of which there is no proof, he could hardly be said to have procured his own property to be taken in execution, for it was not his in any full sense. The assignment in obedience to a decree of a court of equity, which, if he had not made it immediately, ought to have sent him to prison at once for contempt, is not such an assignment as is contemplated by the 35th section of the bankrupt act. But proof is offered to show that one piece of property assigned by Myers to the trustee, Suter, was held by Myers in his own name antecedent to his appointment as trustee of Edward Griffith’s will, and the assignment of this piece of property which it is said is not within the terms of the decree of Baltimore county court is an act of bankruptcy. Myers says, however, in his examination, and there is nothing to contradict it, that he borrowed the money to purchase the property in question, and afterwards paid the lender with the money of Griffith’s estate. This, it is argued, does not make the property in question part of the trust estate, because the money of the trust is not traced directly to investment in it. But surely it would be hard to adjudge that an act of bankruptcy which stands upon so doubtful a point of equity law. Myers was required by the decree of a court whose confidence he had grossly violated to convey to Suter all property in the purchase of which he had used funds of the trust estate committed to his care. He had not, perhaps, in this instance taken the actual money paid to him as trustee to pay for this particular piece of property, but he repaid the loan which he had made in order to .its purchase with trust funds. It is not-unlikely, had he not done as he did, and made the transfer, Baltimore county court would have imprisoned him till he complied with the decree, and would have ruled, as it should have done, all doubtful questions of equity against the faithless trustee, leaving their final determination to await the suit of some injured creditor. We do not think this, under the circumstances and facts shown, was an act of bankruptcy on the part of Myers. There is nothing else alleged in the petition of these creditors as an act of bankruptcy which is set out with any particularity. Proof has been offered here, however, of an assignment of an interest in an insurance company; but as that assignment was not specifically set forth in the petition, or mentioned in any way, so as to give the bankrupt notice that he was to be held to answer it, no proof of it was allowed to be given in the district court, but was properly refused. I think the judgment of the district court was correct, and that this petition should be dismissed.