the rules prescribed by the court, governing amendments generally. Tremaine v. Hitchcock, 23 Wall. 518; Neale v. Neales, 9 Wall. 1; Mitf. Eq. PI. 326, 331; Story, Eq. PI. §§ 904, 905; Daniell, Ch. Pro 463, 466; McArtee v. Engart, 13 Ill. 242. It is quite clear that the claim covered
by the amendment might have been joined originally in the claim embraced in the bill. Henry v. Soapstone Co., 2 Ban. & A. 221; Packer Co. V. Eaton, 12 Fed. Rep. 865; Spring V. Se.wing-Machine Co., 13 Fed. Rep. 446; Grim's Appeal, 105 Pa. St. 375; Hoyt V. Spraig, 12 Chi. Leg. N. 25; Sage v. Woodin, 66 N. Y. 578; Kimball v. Lincoln, 99 Ill. 578, 5 Bradw. 316; Brooks V. Brooks, 12 Heisk. 12; Mead V. Raymond,52 Mich. 14, 17N. W. Rep. 221. The claim was omitted by oversight. The evidence, however, on which it rests has been mainly taken. If the amendment was not allowed,the parties would be subjected to delay and expense, with no possible advantages to either of them. It will therefore be allowed, subject to any defense which defendant might have presented if the claim had been embraced in the bill when filed. If additional costs result from the omission so to embrace it, they will be placed on the plaintiff.
JONES f1. SMITH
E. D. NetD York. March 6, 1889.)
BA.NXRUPToy-ASSIGNEE-FRAUDULENT CONVEYANCES-LIMITATION 011' ACTIONS.
Complainant was appointed assignee in bankruptcy in 1879, and brought this suit in 1886, to set aside as fraudulent certain conveyances made by the bankrupt.· In 1875 certain creditors had brought an action (and filed a ltl pendens) to set aside the same conveyances, on the ground that they were fraud· ulent and without consideration. Held, that the six-years statute of limitation of suits to procure a judgment on the ground of fraud (Code Civil Proc. N. y. § 882,subd. 5) began to run as a/rainst complainant-whose right is only as the representative of creditors-from the commencement of the creditors' ac-
In Equity. Bill to set aside conveyances. On final hearing. B. G. Hitchings, for complainant, cited to the point decided:
Bradshaw v. Klein, 1 N. B. R. 542; Oragin v. Oarmichael, 11 N· .8. R. 511; Freelander v. Holloman, 9 N. B. R. 331; Bailey v. Glover, 21 Wall. 342; llo$entha'l v. Walker, 111 U. S. 185; 4 Sup. Ct. Hep. 382; Oook v. She1'man, Fed. Rep. 171; Adams v. Stem, 29 HUll, 280.
F. R. Coudert and James R. Angel, for defendants, cited to the point decided: u. S. v. Beebee, 17 Fed. Rep. 37; Maxwell V. Kennedy, 8 How. 221; Burke v. Smith, 16 Wall. 401; Wait, Fraud. Cony. §§ 287,292, 293; Aldridge v. Muirhead, 101 U. S. 402. .
LACOMBE, J., This is a suit brought by the assignee in hankruptcyof David M. Smith, to set aside the conveyances by him of three separate parcels of real estate to. the several defendants. The conveyances are
JONES V. SMITH.
claimed to be fraudulent as against the creditors whom the assignee represents. The case was before this court on demurrer as Jones v. Slauson, 33 Fed. Rep. 632. The evidence has now been taken, and the case is submitted 011 final hearing. The conveyances complained of were all made and recorded prior to January 1, 1875. Smith was adjudged .a bankrupt in 1878, and the complainant appointed assignee in 1879. This suit, however, was not begun until September, 1886. The defendants have pleaded in bar the short statute of limitations prescribed by Rev. St. U. S. § 5057, for suits by an assignee in bankruptcy, and also the state statute of limitations covering certain actions to procure judgments on the ground of fraud. The latter may be first conaidered. By the New York Code of Civil Procedure, § 382, subd. 5, it is enacted that"An action to procure a judgment othel than for a sum of money, on the ground of fraud, in a case which, on the thirty-first day of December, one thousand eight hundred and forty-six, was cognizable by the court of chancery, [must be brought within 6 years after the cause of action accrued.] The cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud." This suit is one of the class provided for by the terms of the section above quoted. Piper v. Hoard, 65 How. Pro 235; Kirby V. Railroad Co., 120 U. S. 138, 7 Sup. Ct. Rep. 430. With certain qualifications,which, under the facts of this case, need not be discussed,-courta of equity feel themselves bound in cases of concurrent jurisdiction by the statutes of limitation that govern courts of law in similar circumstances, and if the complainant would be barred of his relief in the state court by lapse of time he will be barred here also. Wood V. Carpenter, 101 U. S. 138; Kirby v. Railroad Co. ,,8upra; Clarke v. Boorman's &'1'8, 18 Wall. 509; Burke v. Smith, 16 Wall. 401. The assignee in bankruptcy takes from the bankrupt all the rights of property and of action previously held by him, but the right to maintain an action such as this does not come to the assignee from that source. A transfer made with intent to defraud creditorS is valid as between the parties to it. The fraudulent debtor has no right of action to set it aside, and no such right, therefore, passes to the assignee as part of his estate. By operation only of the express terms of the statute (section 5046, Rev. St. U. S.) that right, which, before the adjudication in bankruptcy, belonged to the creditors, was taken from them and given to the assignee. When he asserts such right, he claims under them, and not under the bankrupt. Brownell v. Curtis, 10 Paige, 210; .Tones v. Yates, 9 Barn. & C. 532; Van Heusen v. Radcliff, 17 N. Y. 580; Bradshaw V. Klein, 1 N. B. R. 542; Kane V. Rice, 10 N. B. R. 475; In re Leland, 10 Blatchf. 507; Trimble v. Woodhead, 102 U. S. 647; Dudley v. Easton, 104 U. S. 99. In determining, therefore, as to the effect of lapse of time upon the right of action in this case, it becomes necessary first to inquire whether there was a discovery of the frand by those under whom the complainant claims. It is abundantly settled by authority that actual personal knowledge of
the facts constituting the fraud need not be shown to. charge a persoil, who hItS been quiescent for a period longer than that fixed by statttte. with discovery thereof. It is enough if he is put upon. inquiry with the means of knowledge aocessible to him. Burke v. Smith, 16 Wall,. 401; Wood v. Oarpem.ter, supra· . ·As to what facts are sufficient to put a person of.ordinary intelligence and prudence on such. inquiry, the authorities Me not,perhaps, in entire accord. In this state it has been held that where the conveyance purports upon its face to be fora valuable consideration, knowledge of its existence, and ,that the grantor'is insolvent, is not "knowledge of facts constituting fraud," unless there is knowledge also of the fact that the conveyance was without consideration. Enckson v Quinn, 47 N. Y. 410. The,very element, however, which was missing in the case last cited is present here. Joseph and Joseph J. Kittel were judgment ,creditors of the bankrupt. Their names are included in his schedules. Appearing by the attorney who now brings the present suit, and who stated on the argument that he also represents the other creditors, the Kittels, on July 7, 1875, brought suit in the -supreme court of the state against these defendants, to set aside as fraudulent the verycol.1Veyances here attacked, and duly filed a lis pendens. In their complaint they averred not only thatsairl conveyances were made by an insolvent, but that the grantees had full knowledge of the insolvency,and participated in the fraud; and also that the conveyances were without adequate consideration. As to one parcel, they expressly alleged that the nominal consideration was $1,00(}, "a grossly inadequate consideration;" as to another parcel, that though there was a pretended consideration of $18,000 in the deed, there was "really no consideration whatever;" as to the third parcel theyav;erred that, though the alleged consideration expressed in the conveyance was $4,300, "the transfer ,vas made in reality, if for any consideration whatever,fora debt of $500." .It is by endea'roring to prove that the facts as to tqese conveyances are substantially as they were thus set out in· the Kittel suit that the complainant here seeks to make out his case. It appears, therefore, that upwards of 11 years before plainant brought this suit all the facts constituting the fraud had been discovered by one of the vflry creditors under whom he claims. The six-year statute oElimitation began to run at least from the commenCement of the Kittel action, and the bar became complete long before the beginning of the present suit. Hubbell v. Medbury, 53 N. Y. 98. The defendants may take a decree of dismissal.
(Otrc'Uit OO'U4't.N. D. Illinois. April 8, 1889.)
A. testator devised certain shares of stock to his t",olilxecutors, H.and W.· in trust- to be 'sold and the proceeds' h.eld for the beJ,iefit of his wife andchildren.W. was not allowed:to qualify as executor because he was a non-resident. and H. qualified as Bole executor, and applied to. the probate court and obtained an order to' sell the stocjI:; on the ground that it was in danger of becoming nepreciated. W. filed this bill, alleging that H had excluded him :from·participating in the trust; that the annual meeting of the corporation is soon to be held; and that by reason of dissensions between complainant !Llld defendant as. to said stock its vote cannot be cast so as to properly manage the affairs of the corporation; and praying for a receiver to take possession of the stocli:. vote .uponit at the coming ann ual meeting. and sell it under the direction of ,thill c.onrt after due construction of the will. Held. that the relief The probate conrtcanfullyprotect the interests of would not be all parties concerned.
In Equity. Bill for appointment of receiver. E. F. Gorton, W. S. Young,Rnd R. H. OurtiB,for complainant. D. J. &: H. D.Orocker and James L. High, for defendant. John· Woodbridge and S. EaBtman, for intervening petitioners.
BLODGETT,J. This is an application for the appointment ora receiver to take possession of, vote upon, and sdl16 shares of the capital stock ofthe Blanke & Bros. Caady Company, a corporation formed and existing under the laws of the state of Missouri, and doing business in the city of St. Louis. The allegations of the bill material to the question now before the court are that one F. W. Blanke, now deceased, who was a resident ofthe city of Chicago during his life-time, was the owner of said 16 shares of.stock; that he died testate in this city on the 3d of April, 1888, and by his will devised the said Stock to the complainant, Wannekerjand the defendant, Hitchcock, as trustees, to be sold bythem, and the proceeds held for the ·use of his wife and children, with the direction that the said stock be sold to the testator's nephew, Henry W. Blanke, in case his bid should be equal to the highest bid of any stockholder of the corporation, and exceed the highest bid of any other persam. The complainant and the said HitchcOck were, by the terms of the will, appointed executors, but on probating the will in the probate court of Cook county that court refused to appoint the complainant one of the executors, on the ground that he was nota resident of the state of Dlinois, and the defendant, Hit<lhcock, was appointed sale executor upon his individual bond. The bill further charges that Hitchcock, as eiecutor,hasfuken possession of the stock, and now holds the same; that the stock is worth, inclUding the dividend declared on the 1st day of March last, the sumof 855,000; that Hitchcock refused to allow the complainantto participate i in. the management ofthe affairs of the said estate,or in.anymanagement oftha stock, although it was specifically devised to the oomplainant and Hitchcock as co-trustees; and that Hitch-