Ward v. Connecticut Pipe Manufacturing Co.

42 L.R.A. 706, 41 A. 1057, 71 Conn. 345, 1899 Conn. LEXIS 3

Opinion

Baldwin, J.

The judgment recovered by default in the Supreme Court of the State of New York cannot found a claim against the estate in the hands of the receiver. The only service of process upon the defendant having been made out of that State, there exists no personal obligation on its part to pay it.

The right of the Davies & Thomas Company, however, to present its original account against the defendant for allowance in the receivership proceedings in this State, was not prejudiced by its having put it into judgment in New York. That was necessary to secure the benefit of the attachment which had been lawfully made before those proceedings were commenced. Lawrence v. Batcheller, 131 Mass. 504. Our statute dissolving attachments made within sixty days before the appointment of a receiver of a corporation (Public Acts of 1895, p. 491), has no application to legal proceedings in other States.

There is no ground for the claim that the Davies & Thomas Company, after receiving notice of the appointment of the receiver in Connecticut, was put to an election whether to pursue its remedy in the New York courts or in those of this State. Whatever might be true, had it been a citizen of Connecticut, it had a right, as a citizen of Pennsylvania, to avail itself of the security which it had already obtained by attachment, as fully as if it had come by a mortgage, and should it prove insufficient to satisfy its demand, to maintain a claim for the balance in the same manner as any other creditor.

The property thus attached naturally brought less than its fair market value at the sale on execution. Being, however, in the custody of the New York court, and a forced sale being the only legal mode of disposing of it to satisfy the judgment, the net proceeds were all for which the execution creditor was accountable in reduction of its demand.

Different considerations apply to the second attachment, and govern its consequences. It was made after the appointment of the receiver, and with notice of that fact. The decree under which he derived his title required the defendant to execute conveyances of any of its property which might be necessary and proper by way of further assurance. It did execute forthwith a conveyance to him of all its property in New York. The Davies & Thomas Company had notice of the decree, and therefore equitable notice that such a conveyance might have been made, a month before it made its second attachment.

An assignment of personal property, not followed by a change of possession, is voidable by attaching creditors, unless the assignee can give a satisfactory excuse for the want of delivery. Swift v. Thompson, 9 Conn. 63. The defect of title is due to a presumption of fraud derived from the consent of the assignee to a continuance of the appearance of ownership in the assignor. An assignment by an insolvent debtor for the benefit of his creditors generally is not within the reason of the rule. He cannot be presumed to intend to defraud any of them by a conveyance made in the interest of all. Nor is it certain that everything that is assigned will be accepted. The representative of the creditors is entitled to a reasonable time within which to decide whether any particular item of the property is worth taking, or not.

The suit now before us is one brought by a majority of the defendant’s stockholders for its dissolution, and counts upon a vote of the directors that its affairs ought to be wound up and a receiver appointed. The receiver’s failure to take possession of the goods upon which the second attachment was levied, is sufficiently explained by the information which he received that they had been seized under the first attachment before his appointment. Under these circumstances, the transfer of title to him was good under our law, as against any creditors of the defendant. It is unnecessary to determine whether the receiver, never having been in possession, could have set it up before the courts of New York to defeat the attachment. He did not intervene for that purpose in the proceedings there, nor, bad he done so unsuccessfully, would it have precluded him from insisting that in this suit the Davies & Thomas Company appears in the character of a wrong-doer, asking equity where it has not done equity. Hibernia National Bank v. Lacombe, 84 N. Y. 367, 386. General Statutes, § 532, directs courts of probate, in the settlement of estates of insolvent debtors, after providing for preferred claims, to order all other claims allowed by the commissioners to be paid pro rata, “ subject to such existing equities as may be ascertained and decreed by the court, upon hearing, after public notice.” A similar rule must govern in these proceedings. General Statutes, §§ 1942, 1965; Public Acts of 1895, p. 573, § 3; In re Waddell-Entz Co., 67 Conn. 324. The Davies & Thomas Company not only knew of the decree appointing the receiver, but knew, or had ample means of knowing, when the second attachment was made, that the property had been transferred to the receiver by a good conveyance at common law, executed in furtherance of that decree. It is not alleged, and cannot be presumed that, under the laws of New York, such a transfer is invalid. Guillander v. Howell, 35 N. Y. 657; Hoyt v. Thompson, 19 id. 207, 224. A voluntary conveyance of goods made by the owner at his domicil, in a form which is sufficient there and also at common law, is effectual to transfer the title, although they may at the time be in another State, unless the statutes or local policy of that State forbid. The present was from the beginning substantially a voluntary proceeding. Its declared purpose was to carry out a vote of the directors of the defendant company providing for winding it up through the agency of a receiver. Service of the writ was accepted by the defendant, with a'stipulation for its immediate return, and for a hearing on the day of its issue, upon the application for a temporary receiver. The statute authorizes the Superior Court, as a court of equity, to wind up the affairs of any such corporation and dissolve it, on the complaint of shareholders owning not less than a tenth of its capital stock, if it be found that the interests of the shareholders will thus be best protected. Public Acts of 1895, p. 571, § 1. The appointment of the plaintiff was based upon such a finding. No element of compulsion is disclosed by these proceedings. If the assignment by the defendant to the receiver had been forced upon it at the instance of a creditor, this might have been regarded as an in invitum proceeding. Catlin v. Wilcox Silver-Plate Co., 123 Ind. 477, 24 Northeastern Rep. 250. As it is, that question is not involved, for the conveyance made to protect its interests, and under a decree which three quarters of its shareholders had sought, and none opposed, cannot fairly be regarded as other than a voluntary one. It was an exercise of the jus disponendi which is incident to ownership. It placed the goods which were its subject precisely where the defendant wished to have them placed, at the disposal of one representing, primarily all its creditors and secondarily all its shareholders. This wish had been first expressed by the vote to wind up; then by the consent to an immediate hearing on a petition by three quarters of the shareholders for the appointment of a receiver to aid in carrying out the vote; then by making no opposition to such an appointment, by what was virtually a consent decree; and finally by transferring to him whatever title it could to all that it possessed.

The effect of such a transfer on goods in another State is not to be determined simply by the rule of comity which is applicable to extra-territorial assignments by operation of law; but rests on the general principles of jurisprudence as to the right of every one to dispose of what he owns. Egbert v. Baker, 58 Conn. 319; First National Bank v. Walker, 61 id. 154.

The Davies & Thomas Company has come into this State to secure, at the hands of a court of equity, the benefit of a winding-up suit, in the course of which it has acquired a special advantage by a seizure of assets of the estate in another jurisdiction, with actual notice of the pendency of the action, and equitable notice of the receiver’s title under the conveyance which has been under consideration. No one can claim the benefit of such a proceeding without renouncing every right which is inconsistent with its proper object. That object is, primarily, to dispose of all the property which the defendant owned at the commencement of the suit, subject to existing liens and lawful preferences, for the equal benefit of all its creditors. This cannot be accomplished, if. without leave of the conrt, new liens can be created upon it or preferences secured, upon no new consideration, during the pendency of the action.

The benefit of the first attachment can be lawfully retained. That of the second must be renounced, and the property taken upon it considered, as between the receiver and the Davies & Thomas Company, as assets of the estate which it has wrongfully converted, and for which it must account, before it can be allowed to share as a creditor in the estate. The measure of liability is the fair value of the goods at the date of the attachment, with interest. Oviatt v. Pond, 29 Conn. 479. As it had no equitable right to levy on them, it is immaterial that they brought less than their value at the sheriff’s sale.

If the Davies & Thomas Company pays the amount above stated to the receiver, it should be admitted to prove its claim upon its original account against the defendant, less the net proceeds of the goods sold under the first attachment. In ascertaining such proceeds, no deduction from the gross amount received from their sale should be made on account of fees or costs accruing under the second attachment. If it does not make such payment, its claim should be wholly disallowed. In re Greeley & Co., 70 Conn. 494; Cockerell v. Dickens, 3 Moo. P. C. C. 98, 132.

The Superior Court is advised that the Davies & Thomas Company is not entitled to prove its claim against the estate in the hands of the receiver, unless it first pays him the amount specified in the foregoing opinion, and that, upon such payment, it can prove a claim, but only for the original indebtedness, less the net proceeds of the original attachment, ascertained as indicated in said opinion.

No costs will be taxed in this court in favor of any party.

In this opinion the other judges concurred.