Jones v. Dexter

125 Mass. 469, 1878 Mass. LEXIS 104

Opinion

Gray, C. J.

It would seem that the assignment under the insolvent laws vested in the assignee in insolvency the title to the insolvent debtor’s share in the partnership assets, including the sums awarded by the Court of Commissioners of Alabama Claims. Gen. Sts. c. 118, § 44. Barker v. Goodair, 11 Ves. 78. Murray v. Murray, 5 Johns. Ch. 60, 78. Gray v. Bennett, 3 Met. 522, 525. Comegys v. Vasse, 1 Pet. 173. United States v. Hunter, 5 Mason, 62, and 5 Pet. 193. Leonard v. Nye, ante, 455. But, upon the allegations of the amended bill, all the debts proved against the estate in insolvency, or existing at the time of the assignment, have been paid, satisfied and discharged, and the debtor is, in equity at least, entitled to the surplus assets remaining in the hands of the defendants, and the assignee, even if he cannot be considered to have been made a party to the bill in regular form, has clearly signified in writing his assent to the truth of these statements and to the maintenance of the bill in the name of the debtor. Under these circumstances, there is nothing in the provisions of the insolvent laws, or in the practice of courts of chancery, which prevents the bill being so maintained. Gen. Sts. c. 118, § 94. Stone v. Hubbard, 7 Cush. 595. Wearing v. Ellis, 6 De G., M. & G. 596. Plea overruled.