ÆäÀÌÁö À̹ÌÁö
PDF
ePub

IN RE BRINCKMANN.

DISTRICT COURT FOR THE DISTRICT OF INDIANA, JULY 9, 1900.

[Reported in 103 Federal Reporter, 65.]

117

F

BAKER, District Judge. On May 3, 1900, George P. Chadwick, of F Laporte County, Ind., filed a petition in involuntary bankruptcy against Robert Brinckmann, of the same county and State. The petition alleges that Chadwick is a creditor of said Brinckmann, having provable claims amounting in the aggregate, in excess of securities held by him, to the sum of $500, and that the creditors of said Brinckmann are less than twelve in number. The petitioner alleges that the debt owing by the alleged bankrupt to himself is a judgment rendered January 29, 1900, by the circuit court of Marshall County, Ind., for $1,250, for a wilful and malicious injury to the person of the petitioner committed by said Brinckmann on July 15, 1899. He alleges that there is interest due on said judgment from the date of its rendition, and costs of suit taxed in said cause, amounting to $140.20. The petitioner alleges that said Brinckmann is insolvent, and that within four months next preceding the date of the filing of his petition said Brinckmann committed acts of bankruptcy, in that he did on January 3 and 15, 1900, convey, mortgage, and transfer all of his real and personal property to Louisa Brinckmann, William Brinckmann, Herman Brinckmann, and James F. Gallaher, with intent to prefer them as creditors over his other creditors, and especially the petitioner, and that said Brinckmann also conveyed, transferred, and concealed his property with intent to hinder, delay, and defraud his creditors. Said Brinckmann filed an answer putting in issue all the material averments of the petition. The court has heard the evidence adduced by the respective parties, and is of opinion that the petitioner was not a creditor of the alleged bankrupt at the time that the acts of bank-D ruptcy were committed. It is shown by the evidence, without dispute, that the case of the petitioner against the alleged bankrupt for the recovery of damages for the malicious and wrongful assault and battery was not tried until January 13, 1900, on which day the jury returned a verdict in his favor for $1,250, on which verdict on January 29, 1900, a judgment was rendered for the amount of the verdict and costs by the Circuit Court of Marshall County, Ind. No one except a creditor can maintain a petition in involuntary bankruptcy. The petitioner in this case at the time of the commission of the alleged acts of bankruptcy was not a creditor having a provable claim against the alleged bankrupt. Section 1, cl. 9, of the bankruptcy act defines a "creditor" as follows:

"(9) Creditor shall include any one who owns a demand or claim provable in bankruptcy and may include his duly authorized agent, attorney or proxy."

Section 63, cl. "b," provides as follows:

(b) Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct and may thereafter be proved and allowed against his estate."

The petitioner's claim at the time the alleged acts of bankruptcy were committed was unliquidated. He had not at that time reduced his claim for damages for a tort into judgment. It remained an unliquidated claim until judgment was rendered on the verdict. In the case of Beers v. Hanlin, 3 Am. Bankr. R. 745, 99 Fed. 695, it is held that an unliquidated claim is not a provable debt in bankruptcy, and one arising out of tort must first be reduced to judgment, or, pursuant to application to the court, be liquidated, as the court shall direct, in order to be proved; and it is further held that where the only alleged creditor is one who had an unliquidated claim for tort, not reduced to judgment at the time of an alleged preferential transfer, he is not a creditor who can insist that such transfer is an act of bankruptcy. The case of Ex parte Charles, 14 East, 197, 16 Ves. 256, is a much stronger case against the petitioning creditor than the case last cited. The case was sent by Lord Chancellor Eldon to the Court of King's Bench. The facts stated by the chancellor for the opinion of the court were that an action upon the case was brought by Mary Howell against one John Charles for breach of promise of marriage, in which she obtained a verdict on December 5, 1808, for £150, in damages. On December 25, 1808, the act of bankruptcy was committed by an assignment by the alleged bankrupt of all of his effects. Judgment on the verdict was entered January 31, 1809. On February 4, 1809, Mary Howell petitioned for a commission of bankruptcy, which issued on February 21, 1809, upon the debt evidenced by her judgment. The case was elaborately argued before the entire court on the certificate sent to it by the chancellor; the question being whether or not Mary Howell, at the time of the commission of the alleged act of bankruptcy, owned a provable debt, and was a creditor, within the true construction of the bankruptcy act. The court unanimously certified to the chancellor that the debt was not a sufficient debt to support a commission. Afterwards, in the sittings after Trinity Term, 1812, upon the petition of the bankrupt, the commission was superseded, with costs. In Scott v. Ambrose, 3 Maule & S. 327, Lord Chief Justice Ellenborough said that all the courts in Westminister Hall had concurred in the doctrine of the case of Ex parte Charles. The petitioner not having been a creditor owning a provable claim at the time of the commission of the alleged acts of bankruptcy, cannot maintain his present petition. It will therefore be dismissed at the costs of the petitioner.1

1 Re Morales, 105 Fed. Rep. 761, likewise held an unliquidated claim insufficient to support a petition.

A contingent debt is not enough to support a petition. See Ex parte Page, 1 Gl. & J. 100; Sigsby r. Willis, 3 B. R. 207.

[merged small][ocr errors][merged small]

CHAPTER IV.

ACTS OF BANKRUPTCY.

SECTION I.

FRAUDULENT CONVEYANCES.1

STATUTE 13 ELIZABETH, c. 5. 1570.

For the avoiding and abolishing of feigned, covinous and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments and executions, as well of lands and tenements as of goods and chattels, more commonly used and practised in these days than hath been seen or heard of heretofore: (2) which feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments and executions, have been and are devised and contrived of malice, fraud, covin, collusion or guile, to the end, purpose and intent, to delay, hinder or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs, not only to the let or hinderance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining and chevisance between man and man, without the which no commonwealth or civil society can be maintained or continued:

II. Be it therefore declared, ordained and enacted by the authority of this present parliament, That all and every feoffment, gift, grant, alienation, bargain and conveyance of lands, tenements, hereditaments, goods and chattels, or of any of them, or of any lease, rent, common or other profit or charge out of the same lands, tenements, hereditaments, goods and chattels, or any of them, by writing or otherwise, (2) and all and every bond, suit, judgment and execution, at any time had or made sithence the beginning of the Queen's majesty's reign that now is, or at any time hereafter to be had or made, (3) to or for any intent or purpose before declared and expressed, shall be from henceforth deemed and taken (only as against that person or persons, his or their heirs, successors, executors, administrators and assigns, and every of them, whose actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs, by such guileful, covinous or fraudulent devices and practices, as is aforesaid, are, shall or might be in any wise disturbed, hindred, delayed or defrauded) to be clearly and utterly void, frustrate and of none effect; any pretence, colour, feigned 1 For convenience of treatment the subject of conveyances fraudulent as to creditors is dealt with in this section as a whole.

consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.

III. And be it further enacted by the authority aforesaid, That all and every the parties to such feigned, covinous or fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions and other things before expressed, and being privy and knowing of the same, or any of them; (2) which at any time after the tenth day of June next coming shall wittingly and willingly put in ure, avow, maintain, justify or defend the same, or any of them, as true, simple, and done, had or made bona fide and upon good consideration; (3) or shall alien or assign any the lands, tenements, goods, leases or other things before-mentioned, to him or them conveyed as is aforesaid, or any part thereof; (4) shall incur the penalty and forfeiture of one year's value of the said lands, tenements and hereditaments, leases, rents, commons or other profits, of or out of the same; (5) and the whole value of the said goods and chattels; (6) and also so much money as are or shall be contained in any such covinous and feigned bond; (7) the one moiety whereof to be to the Queen's majesty, her heirs and successors, and the other moiety to the party or parties grieved by such feigned and fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions, leases, rents, commons, profits, charges and other things aforesaid, to be recovered in any of the Queen's courts of record by action of debt, bill, plaint or information, wherein no essoin, protection or wager of law shali be admitted for the defendant or defendants; (8) and also being thereof lawfully convicted, shall suffer imprisonment for one half year without bail or mainprise.

VI. Provided also, and be it enacted by the authority aforesaid, That this act, or anything therein contained, shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods or chattels, had, made, conveyed or assured, or hereafter to be had, made, conveyed or assured, which estate or interest is or shall be upon good consideration and bona fide lawfully conveyed or assured to any person or persons, or bodies politick or corporate, not having at the time of such conveyance or assurance to them made, any manner of notice or knowledge of such covin, fraud or collusion as is aforesaid; anything before mentioned to the contrary hereof notwithstanding. 1

1

1 It is generally held that such conveyances as are within this statute would be invalid without the aid of a statute. Co. Litt. 290b; Cadogan v. Kennett, 2 Cowp. 432; Baker v. Humphrey, 101 U. S. 494, 499; Anderson v. Hooks, 9 Ala. 704; Allen v. Rundle, 50 Conn. 9, 32; Peck v. Land, 2 Ga. 1, 10; Ewing v. Runkle, 20 Ill. 448, 461; Gardner v. Cole, 21 Ia. 205, 210; Doyle v. Sleeper, 1 Dana, 531, 533; Hall r. Sands, 52 Me. 358; Blackman v. Wheaton, 13 Minn. 326, 330; Edmonson v. Meacham, 50 Miss. 34; Sands v. Codwise, 4 Johns. 536; Seymour v. Wilson, 19 N. Y. 417, 420; O'Daniel v. Crawford, 4 Dev. 197, 202; Clark v. Douglass, 62 Pa. 408, 416; Hudnal v. Wilder, 4 McCord, 294; Russell v. Stinson, 3 Hayw. 1, 5; Davis v. Turner, 4 Gratt. 422.

SECTION I. (continued).

(a) SALES AND TRANSFERS for Value.

TWYNE'S CASE.

STAR CHAMBER, 1602.

[Reported in 3 Coke, 80 b.]

IN an information by Coke, the Queen's Attorney General, against Twyne of Hampshire, in the Star-Chamber, for making and publishing of a fraudulent gift of goods, the case on the stat. of 13 Eliz. cap. 5, was such Pierce was indebted to Twyne in four hundred pounds, and was indebted also to C. in two hundred pounds. C. brought an action of debt against Pierce, and pending the writ, Pierce being possessed of goods and chattels of the value of three hundred pounds, in secret made a general deed of gift of all his goods and chattels real and personal whatsoever to Twyne, in satisfaction of his debt; notwithstanding that Pierce continued in possession of the said goods, and some of them he sold; and he shore the sheep, and marked them with his own mark: and afterwards C. had judgment against Pierce, and had a fieri fucias directed to the Sheriff of Southampton, who by force of the said writ came to make execution of the said goods; but divers persons, by the command of the said Twyne, did with force resist the said Sheriff, claiming them to be the goods of the said Twyne by force of the said gift; and openly declared by the commandment of Twyne, that it was a good gift, and made on a good and lawful consideration. And whether this gift on the whole matter was fraudulent and of no effect by the said act of 13 Eliz. or not, was the question. And it was resolved by Sir THOMAS EGERTON, Lord Keeper of the Great Seal, and by the Chief Justice POPHAM and ANDERSON, and the whole court of Star Chamber, that this gift was fraudulent, within the statute of 13 Eliz. And in this case divers points were resolved:

1st. That this gift had the signs and marks of fraud, because the gift is general, without exception of his apparel, or any thing of necessity; for it is commonly said, quod dolus versatur in generalibus. 2d. The donor continued in possession and used them as his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them.

3d. It was made in secret, et dona clandestina sunt semper suspiciosa.

4th. It was made pending the writ.

5th.

Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and a trust is the cover of fraud.

« ÀÌÀü°è¼Ó »