476
FEDERAL REPORTER.
cision as to whether the orators are entitled to a decree for a sale under the prayer of the bill as framed, is nOw made, but the cause is retained for further proceedings and directions in that respect, on failure, if any, to redeem. Question has been made as to the right to the special rate of 7 per cent. interest after the falling due of the bonds. This isa Vermont contract, to be construed by the laws of Vermont. Thill question arose upon bonds and mortgages of the Rutland & Burlington Railroad in Oheever v. Rutland &- B. R. 00., in the supreme court of Vermont, the highest court of the state, at the general term, 1869, not reported in the state reports. In that case it was held that the principal of the bonds bore interest at the special rate after they were due, as well as hefore, and the interest coupons at the usual rale allowed by law, from the time when they fell due. Opinion by STEELE, J., Pamph. 18, 19. The reckoning stated from the master's report is in accordance with this decision, which is controlling upon this question. These are all the'points about which any question has arisen. The master's report is accepted and confirmed. The leave heretofore granted to bondholders to become parties plaintiff is so modified that bondholders not citizens of Ve.rmontmay become such parties at any time bef0re the first day of March, 1887, by entering an appearance for that purpose, with consent to share ratably the expenses of this· suit. And let· a decree be entered to the effect that, unless the defendants, within one year from the fifth day of October, 1886, pay to the orator the Jackson & Sharp Company the sum of $18,109.65, and to the orator the Diamond State Iron Company the sum of $13,791.19, and to such other bondholders as shall become parties plaintiff, pursuant to the leave granted, the several sums due them respectively, as shown by the master's report, with interest on all of the sums, respectively, from the fifth day of October, 1886, to the time of payment, together with the costs of this suit, they be foreclossd of all equity of redempti0n in the premises; and this suit is retained for further proceedings and directions, in case of such failure.
and others
'0.· BROWN
and others.
(Olrc""it Court, 8. D. Georgia, W; D. October 26, 1886.)
1.
COURTS-FEDERAL-A.PPOINTMENT OF RECEIVERS.
When, under the statute of Georgia, it is right to appOint a receIver. the equity coutts of the United States may administer and enforce that right. where they have jurisdiction.
EQUITY-MAsTER'S REPORT-ExCEPTIONS-PRESUMPTIO:NS.
In the determination of exceptions to a master's report. the p'resumptions are in favor of the findings of the master. and such findings WIll not be disturbed. unless shown to be erroneous.
lA:FFREY 'II. BROWN.
477
'8 S.UlE-TREA.'I.'MENT OF. ExCEPTIONS. . Excepti\>ns to the report are regarded so far only as they are sup· ported by the statements of the master, or by evidence to which the attention of the court is called by reference to the particular: testimony. 4. ASIDlIl.REPORT'-WEIGHT OF EVIDlUlOE. . 'nlepower of the court to set aside the report of the master is not to be jiltercised, exceptfor good cause,aJld mere difference of opinion as to the weight oftha evidence, when theteis 'a substantial contlict, is not such good cause. fl. SUlEUNDER ORDER 01' ·COURT -INTERlI'ERlIlNClIl BY PARTIES - Dl$TRIBUTION OF PROCEEDS. 'When parties to the bill, having claims against a stock of goods in the hands:of a receiver, unwarrantably interfere at a'sale of sucb, goods under the order of the court, and, by pretended bids, occasion a loss to the fund arising therefrom, the amounts otherwise due to them on the general distribution will be mulcted by the court, to 'protect other creditors from loss on account of their conduct. ' 6. MORTGAGE-VALIDITy-DESCRIPTION OF PROPERTY COVERED-'-CODE GA. § 1955. A mortgage must clearly indicate the property upon which it is to take effect. Code Ga. § 1955. '1. Sum-GENERAL DESCRIPTION ,INSUFFICIENT-" ENTffiE STOCK," etc. The following description: "Our entire stock of dry goods, boots, shoes, hats, clothing, and notions, and such other goods as are usually kept in a firstclass country store, "-without any indication as to the whereabouts of the goods, or without any other language of identification,-is not a sufficient description. ' 8. SALE-RIGHTS 011' VENDOR-RESCISSION FOR FRAUD":"RECAPTION-GENERAL CREDITORS. , Where goods are obtained by fraud, the sale is void, and passes no title, and the right of the vendor to retake the goods in the hands of the fraudulent vendee, who is insolvent" is superior to the claim of a general creditor of the latter. 1 9. SAME-PuRCHASE WITH INTENT NOT TO PAY. A contract for the purchase of goods on credit, made by the purchaser with intent not to pay for them, is fraudulent; and, iI he has no reasonable expectation of being able to pay, it is equivalent to an intent not to pay.l 10. SAME. The facts of this case abundantly show such fraud as will vitiate the sale, under the rules above given. (Syllabu8 by
the Oourt.)
In Eq1;lity. . '.. Alex. Prondfit, Willin9ham It PattM'son, Hardeman It Davis, Dessau It Ba'rtlett, A. G. Riley, and Duncan It Miller, for complainants. Bacon et Rutherford and Hill et Harris, for respondents. SPEER, J. Browll Bros. were dealers in dry goods and kindred merchandise, at Fprt Valley, in this district. On the seventeenth of October, 1885, theymade an 'assignment, having previously, by divers deeds 9f niortgage purporting to incumber their stock in trade, attempted to prefer certain favored persons whom they pretended were creditors. The remnant of tbe goods, assigned for the general credo itors,. was not adequate for the payment of the firm's liabilities; in fact, it was a scarcely appreciable moiety of a largl:\ and valuable assortment of merchandise, which bad been composed of the identical the debts of the defaulting firm had been articles to 9reated.
, lSe:enoteat' Errtd of cas&.
478
FEDERAL' REPORTER.
On October 20, 1885, Jaffrey & Co. and med and Oharles·, Btovrn, partners:) Henry C. Harris, their assignoo:Rosalie and Pelagia Brown, their wives: Gustave Brown,'theircoU8in: and Pauline Binswanger, their aont. 'Complainants averred by.false and deceitful representations of their solvency,Brown -Bros., insolvent at the time, obtained credit: these representations were made with the intention to defraud complainants i ,that the assignment is null and void; that the assignee holds the goods so bought as a trustee for complainants: that all the mortgages purporting the assignee and relatives of Brown in the sum of $11,861.50 were fraudqhmt, .and made to delay and defraud the creditors, and were without consideration. They charge Harris, the assignee, with collusion in the fraud. They pray that he and the co-respondents be enjoined from prooeeding under the assignment; that a reoeiver be appointed, and that he be required to keep the goods bought from Jaffrey & Co. and Hoohstatder Bros. separately from the rest: and that the proceeds arising from the sale of such goods be specially appropriated to pay the olaims of this olass of creditors for the purchase money. They also pray that the assignment and mortgages so fraudulently executed be declared null ,and void, and ask for general judgments, and for general relief. Discovery is waived. The respondents, in answering the bill, deny its criminatory allegations i assert the validity of the assignment; of all the debts evidenoed by mortgages to the kindred of Brown Bros., and the other preferenoes. The receiver, having been appointed under order of the court, took possession of the assets of the firm, sold the stock, made oollections, and has paid into the registry of the court $6,144:.44, which he reports to be the proceeds. He also reports that one D. J. Baer, an intervening party to the bill, and a oreditor of Brown' Bros., is indebted to him as receiver in the sum of $1,576; this sum being the difference between the price brought by a portion of the stock at the receiver's sale and the prioe bid for it by Gustave Brown, at the instigation of Bfl,er, and who was bidding for and in ooncert with the latter. Many parties complainant were made by intervention. These were general creditors. W. R. Singleton & Co. and Lyon & Co. also claim a speoial lien on a portion of the goods for their purohase price, with allegations equivalent, to those of Jaffrey & -Co. and Hoohstatder Bros: At the the entire cause was a master, with directions to'report the "nature, extent, validity, and dignity of all liens, and to ascertain what amollnts should btl paid out of the fund in court to eaoh of said liens: also what amounts llore due and to be paid to eaoh party not olaiming a lien, whether they claim title to specifio goods or not." The controversy between the reoeiver and D.
JAFFREY tI. BROWN.
479
J.Baer was specially excepted from the reference, a.nd reserved for determinfi:tionby the court. Themaster:f;lled J;lis report in accordance with the order of the court. reports: (1) That the, assignment.' to H. C·. Harris is void. (2) That Brown BrOil. were not insolvent on the eleventh day of Angust, 1885. (3) The mortgages and the cilloimsof Rosalie and PelagiaBrQ'wnlUe void, beea;use of their fraudulent character, and beoaqse of imperfect execution. (4) The of Gustave Brown, for services rendered as a clerk, is rejected, . a nd the mortgage purporting to. secure it. is found vpid.The claim of Gustave Brown for $750, due on two notes made in February, 1884,isallowed to .be paid pro rata withotber creditors. (5) The claim of Pauline Binswanger for $1,200,and mortgage to secure it, is rejected. (6) Thecilliitn of .Morris Willard for $1,000 is allowed, but the. mortgage to secure it is rejected. .(7) The claim of Henry Harris for $600 On the IlDte dated March 11, 1885, and for $611.56 on another note of the same da,te, are allowed, but the .mortgage to secure them is held invalid. Another claim of Henry C. Harris, with note dated February 1, 1885, and payable on the ninth of November of that year,with a mortgage to secure it, is reported to be a valid cl!:\im, and the mortgage is also held valid. (8) The claims of E. S. Jaffrey Go. and Ho.chstatder Bros. are recognized as valid, but the specifi" claims ma.de that the funda,rising from the sale ·of the goods sold by them are disallowed, alild they are placed on theElame footing as the general creditors; and so with.' the clail11s of W. H. LJ'on & Co. and of W. R. Singleton & Co. (9) The master finds that D. J. Baer and Gustave BJ:own are liable, and should pay the receiver the sum of $1,576 for their refusal to take the bid made by Gustave Brown for ;Baerattbe receiver's sale. To thisJ:epod exceptions are filed by D. J. Baer, E. S. Jaffrey & Co., W.R. Singleton & Co., W. H. Lyon & Co., W. D. Nottingham, 1'6ceiver, Morris Willard, Cohen, Feibleman & Co., and Henry C. Harris. In the determination of exceptions to a report of this character, the presumptions are in fav:or of the findings of the master. They will not be disturbed unless shown to be erroneous.. Lockhart v. Horn, :3 Woods, 542. It is generally not the province of the court to investigate the items of account. The report of the master is received as true, where no exceptiona are taken, and the exceptions are to be regarded so far only as they are supported by the special statements of the master, or by evidence which ought to be brought before the court by a reference to the particular testimony. Harding v. Handy, 11 ,Wheat. margo p. 126. In Bridge8v. Sheldon. 7 Fed. Rep. 84, 85, Judge WlIElELER, of the district of Vermont,holds: ... There is no doubt about the power of a court of eqUity to revise the repon Qf d l'naBter, by supplying factB material, which are the evidence,
4'80
FE))ERA:T, REPORTER.
but not stated fil the report; by setting aside the findfngoffacts, notshOw:G. by any evidence. or which are contrary to the evidence, and when errors in la.w have controlled or; intluenced,t,he finding of material facts;, but this revisory power ,of tpe court bas never been considered'as covering aright for a party to appeal' from the master,to the court upon disputed questions of fact determined by the mas£ei' as matters of fact, upon 'cOhtlicting testimony;" citing Green v; Blshop, 1 Cliff. 18&
'The power of ·the aside the repoltofthe master is undeniable, but it is not to be e:xercised exoept for good cause; and mere differences of opinion as tothe weight of:evidence, where there is a substantial oonfliot, is not such good cause.' Bridges v. Sheldon. 18 Blatchf. 295, 507; 8.e. 7 Fed. Rep. 17. The report' of the master under consideration evinces very exhaustive, and conscientious effort to ascertain 'the truth of the issues involved, and his findings not excepted to will be a'pproved asa matter of course. ' With relation to the claim of the' receiver, to the effect that his trust was injured either by the meddlesome interference of Baerat the sale, othis refusal to pay his bid, made for him by Gustave Brown, we hold that the master had no jurisdiction of this question. By the order of reference it was reserved for the finding of the court. The receiver, by order of the court, was directed to protect the integrity of the flind in his hand. He presents a petition after the sale, in which he advises the court that Baer.in co-operation with Gustave Brown, by theirl;1nwarrantable otliciou'sness at the sale, and by their refusal to take and pay for tUEtgoods bid off by them at 71 cents on the hundred, occasioned the 108s to the fund,of more than $1,600. The master nnds'the precise amount, $1,576, and finds a liability against them iilthis amount. Baer denies the facts, alid there if! in relation to this issue much conflicting evidence. I think. however, that the preponderance of the proof is sufficient to warrant the court in finding that Baer and Gustave Brown had arranged to bid off the portion of the 'stock indicated by the receiver; that Brown did the bidding; and that, they afterwards refused to comply with their bid, causing the receiver to resell at the reduced price of 50 cents on the dollar. These meddling persons are parties to the bill. They and were at the time, before thecourt,-one as a complainant, sDd the other as a respondent. They assert the validity of their claims against the fund, which, by· their interference, is reduced in an amount greater than the sum of their demands. There had been a valid and bona fide bid of 70 cents ,before their pretended bid of 71 cents. Can it be possible that the court is powerless to protect the fund in its custody from such reckless and damaging conduct by and at the instance of parties to the record before it? I think not. Messrs. Baer and Brown, in the Qpinion of the court, are jointly and severally liable to the receiver for the fullamonnt of the damage occasioned by their conduct. There are, however, no suitable allegations in the bill tojustify a decree against them for this sum. But they
.TAl'FREYV.BROWN.
481
as creditors, !ill'\ tne fund before' the court; and since they,3nd not the other creditors, caused of this fuud,there'is 110 equity intliel'Ptoposition to require the others to pay their: pro rata· share of ,this .108s. and Messrs. ,Baer !lind Brown must 'pay it, as far, as their distributive shares .that is to say; sin06 the dltrnage which they oOcll.sioned is greater than ·theamount of their claims, they must contribute: the sum' whichotherwis6" they would: racElive on those claims, to the other creditors, that ilhey may not:sllffe'r ,from the unwarrant""ble conduct of BiLerand Brown. To this Elxtent the report of the m.aster must be modified. The finding that the assignm.ent to H. C. Harris is void; tMt the claims of Rosalie and Pelagia Brown, the claim of Gustave Brown· tor services a.s a. clerk, the claim of Pauline Binswanger, and thenlOrtgage of Henry C.Harris, to secure bis'claimevideneed'by two notes,---one for $600a,nd:the other for$611,-is confirmed. SOi also, is the finding that tbeol'&im of E. S.Jaffrey & Co., and Hochstatder Bros., and all the general creditors, valid.'!' The nndingthat the $1,600 claim of H. C. Harris, with the mortgage to secure it, are valid, is Thetwo'hotes of H. C.Hal·ris, before mentioned,. andfol1bdnot secured, will be,elassed and paid pro rata with the eral indebtedness of the firm. To the mortgage :Wr' $1,600 will be added 10 per cent. for counsel fees. Morris Willard presents 'aclaimfo:f $1,000, evidenced bya note of Brown Bros., dated February 11, 1885, and payable one day after date; also, a mortgage intended to secure it; .This mortgage was dated February 20, 1885, but was notrecO'rded until the fourteenth day of October oftbat year. ltremained in the }>Ossession of the wife of one' of the firm. 'I1he property which it to'convey is described as follows: "Our entire stock of dry goods, boots, shoes, hats, clothing, and notibn8J;and such other goods as are UBull:Ily kept in afirst-class country store." There is no further indication of' the property, nor is there any sort of designation of1(;he whereabouts of this personalty. A mortgage must clearly indicate the property upon which it is to take effect. Code G". § 1955. The cases relied on by respondents' counsel, (Nichols v; Hampton, 46 Ga. 253, and Wel6h v.Lewis, 71 Ga. 388,) both contain descriptions more explicit and definite. Nor do we think there is any sufficient delivery of the mortgage. to make it operative against the debts of other creditors. It was not delivered to Morris Willard, but to the wife. Asa feme covert, she must be regarded as sub potestate viri, and her possession was the possession of her husband. There is no sufficient proof of the consent of the husband to this pretended agency on her part. Morris Willard is the brother·inlaw of Brown, and the whole aspect of the' affair has a fraudulent coloring. The mortgages to all the relatives of the defaulting firm, viz., to Pelagia, Rosalie, a.nd Gustave Brown, to PalillineBifiBwanger, to Morris Willard, and to H. C. Harris, the assignee, were recorded Oc. . v.29F.no.11-31
hl1 ve an
FEDEIM.L.. REPORTJj;R.
tober 14th, three days before the assignment. The suppression of these mortgages until this critical moment is a badga of fraud as to creditors, and· they, will. bedewed validity and' effectiveness as liens upon the property of debtors. The report of the master, as to the lvIorris Willard ;mattei is therefore confirmed. He, will be entitled, as'a generAL oreditor, prata,tawith the others, for the prinoipal and i,nteiest ofhi$ olaim, but hehaanolien on the stook. It is for the same reasons, .and for, the additional reason that it was X1otreoorded as required .by law,. that the report of the master disallowing the molltgage givfml:by,Brown Bros. to H. C. Harris, on the eleventh day of March, 1885., ia oonfirmed. The oomplainants Jaffrey &C6., Hoohstatder Bros., Lyon & Co., and W. R. Singleton & Co. insist that they were induoed by the false, ftaudulent statements and·oonduot of Brown Bros. to sell them oer-. tain goods on oredit; that al.. thetime Brown Bros. were insolvent,had neither the ability nor thejutention to pay for the goods so purchased. . They tha,t no title passes by such a sale, and they pray that the receiver keep a separate aocomat of the prooeeds arising fromtha sale of the'goCilds-sold by each of them, respeotively. This was done under oider of. the court. It remains to be determined whether thes.e complainants are entitled to the specific relief they seek. The master reported against the speoial claims set up by this class ofcomplainaIlits. He finds.. firstthatBrownBros. were not insolvent at the time of the alleged fraudulent purohase. He further finds that these complainants· stand upon the same footing as other creditors, and that their speoial olaim is without validity. In the to this portion. of the master's finding, determination of the. there is necessitated a review of the law controlling claims of this character. In Landauer v.· Oochran.54 Ga. 533, the supreme court of this state held "that, where goods are obtained from a party by fraud, no title passes, and the right of the vendor to retake the same by a claim iSisuperior to the lien of an attachment against the fraudulent vendee, levied at the. instanoeofoneof .his creditorst" In Crittenden v. Coleman, 70 Ga. 295, the. faots are very similar to the evidenoe before the mas:'ter in the case under consideration. The court beld "that title because fraud procured the sale, and that the com.plainantl!\rnight recover the goods so sold from a purchaser from the assignee.althe fraudulent debtor, where the circumstances were suffioient to put such purchaser on notice." In Talcott v.: Henderson. 27:Alller. Rep. 501, it is held that "a conbract for the purchase of .goods on credit, made with intent on the part of the purchaser not.to pay for them,' is fraudulent; and, if the purchaser has no. ·rea,sonable expectation of being able to pay, it is equivalent. to, an intention not to pay. But wbentbe purchaser intends to pay, and has expectations of being able to do so, the contract is not fraudulent, although the purchaser knows himself
ito
party not i,ntending to pay. who, as in this. the owner to sell hini goods on credit by concealing bis insolvency, and intent not to pay for them. is guilty of fraud which erititlesthe vendor, iino innocent third party has acqUired aD interest in them; to disaffirm the con· tract,and.recover the goods. Byrd v. Hall, 41"'N. Y;647; Johnson ell, rd. 655; Noble v. 59; Ktlbyv. Wuson,Ryan & M. Bristol v. Wilsmore, 1 Barn,.& C. 514; Stewart v. Emerson, 52 N. 1I. 301; BenJ. Sales, § 440, note of the American editor, and cases there cited."
Ilot diAAIQse it the. vendor, "who is ,ign,o. See. also·. n()tej 5Q4. .. ' .. . In, D<?nal(lson v. Farw.ell. 93 U. S. ,633, the supreme courtof the United States. Mr. deliverillg opinion. holds as follows: , '" "The (J.oct/."ine iI!I now established by a preponderan,c6 of that a
It appears from the evidence that Emile Brown, one of the firm of .., for the purpose of obtaining credit from Jaffrey& Co. Brown and HO,cbstatder Bros., gave them a statement of ,the financial condition firm, and referred them to a statement previously made to Reed, and Cooley, all showing a prosperous solvency. Ref. erence to numerous mortgages to various relatives of the Brown Bros. and.,to H. C. Harris was studiously avoided. These mortgages aggregated many thousand dollars. No reference was made to the Harris.. When Harris was telegraphed an inquiry about their solvency, he replied. with vague generality, but made no mention of his liens on their stock. It was thei!' duty to disclose the existence of. these incumbrances. Such suppression of important facts, when direct inquiry was made, was actual fraud. The New York merchants were entitled to know of the existence of these mortgages. It is not to be supposed that had theY known what a cloud rested on the prospects of the house of Brown Bros. that credit would have been extended to them. The concealment of JP.aterial facts which the vendor was entitled to know was fraudulent, and.in this case will vitiate the sale. The assignment was made on .the fourteenth of October. The assets of the firm, including all the gOQds unpaid for, amounted to $16,627.'(9. Their indebtedne.ss was over $29,000. Mortgages to the extent of $9,000, some of them to enable Rosalie and wives"to.consummate the felicity contemplated in antenuptial contracts entel,'ed into many years ago far away Alsace and Lorrl/.ine, were prepared. The mortgages were never recorded untiphe eye of the assignment. At the defendants went through their books, and marked many of their large solvent debts as paid, and depqsited their notes with their brother .a:t;ld their banker for their own benefit, and never delivered them to. the assignee, or to the receiver., under the order of the court. Gustave Brown, to whom one of the mortgages lound to be fraudulent was gi,veJ?, after the rec.eiver was appointed was found in the possession .of. a large amount. in notes and aQcounts, which he was secretly butW'hich. under a threat of punishment, were
484
FEDERAL'REPORTEB.
turned over to the receiveilj Can doubted that this state of facts was fraudulent as to 'ap.d, if the goods were still in thapossession of thedefatilting the sales might be resQinded, and the goods' retaken by the 'vendors ? All sales 'procured by fi:aud are voidable, at the option of the vendor. Code Ga. §§ 2751, 3178. While fraud may notbepresu,Iiled, slight circttmstances may be sufficient to carry" conviction of its existence. Here the evidence 'the conqlusionthat't4ere was a delibleads the erate purpose on the Pltrt 'of BrQwn Bros. to pile up goods, the property of their ereditors, having made sufficient accumulations, to convey the'same to their rela.tives,atld thus to "break full-handed," --Ii. scandalous perforrqancfil,Jorwbich the powers of criminal courts alone afford adequate punishment. The claIm. of W. R. Singlet'on &' Co. stands upon precisely the same fOoting, except that the defendants made no express representations of their solvency at the time of the last purchase. They had, for a 10llg time, been customers of Singleton & Co. They had repeatedly represented themselves as perfectly solvent. Theretofore they went in person td'Ma,con, where was Singleton & Co.'s house, to make all purchases." On the fifth of October they forwarded the money to pay a small accQuntalready due. They were too busy, they said, to visit Macon, but desired Singleton & Co. to send down a line of'samples, as they make a large purchase. Tbesamples were sent, and the superior class of goods selected were shipped to the busy, and indeed overworked, firm. ' This was done on the seventh of October,. Seven days 'thereafter these', exemplars of industry and probity asihe unbroken pack'i1ges, of Singleton & Co.'s goods were signed, fOllnd in their possession by the receiver. Singleton & Co. are en· titled to 'retake their goods. Lyon & Co. stand upon the saDie footirig, and the sums realized, unqer the order of the court, by the sale of these separatl;lIOts of goods belonging to this class of creditors, must be approprIated to pay tbepurchase money thereof. All of the facts whichtelldto show fraud; when taken in connectIon with the 'great preponderanceof liabilities Over assets, also tend to show the'insolvency of Bro!n Bros. at the time of these purchases. I think that the master drew an erronebus'conclusion from admitted facts when he found them solvent. Nor do I find that there was undue delay in ,the offer toresqind these contracts by complainants. They could not bEl heldaa obliged to rescind until the secret mortgages were recorded,anduntil they a.scertainedthat a fraud wa.s in process of perpetration. Imlllediately thereafter the bill was filed; and while the alliJIgations and prayers were not as ample in the outset as they might have been, this triay be cured by the amendment offered, of the imperfect· knowledge of the· facts, necesBarily which, had by counselatthetfme, the bill was filed, is now allowed. Thecodrt sellBibly the great assistance rendered by the mastel', 'iii evolving the truth from the voluminous and complicated
in
, J3ROw'll:R tI. BROWER.
485
transactions considered. The report is confirmed, save in, the matters hereinbefore set forth. ' Let all creditors who have made proof of their claims be made partheir distributive shares of the fund, in accordance ties, and with the,rnling hereinbefore:ll1ade; let the calcu\ations berevieed accordingly; let the costs be withdrawn from the fund in hand before the distribution is made; and the decree is so ordered. NOTE. SALE-FRAUD. A sale procured by fraud or misrepresentation maybe avoided by the seller, and the l)roperty retaken by him as his own. Sleeper v. Davis, (N. H.) 6 At!. Rep, 201; Ensign v. Hoffield. (Pa.) 4 At1. Rep. 189; Neff v. Landis, (Pa.) 1 Atl. Rep. 177; Hanchett v. KiDibark, (Ill.) 7 N: E. Rep. 491;. S. C. 2 N. E. Rep. 512; Doane v. (Ill.) 4 N. E. Rep. 500; GoodWill v. WertheImer, (N. Y.) 1 N. E. Rep. 404; Bussmgerv. Bank of Watertown, (Wis.)30N. W.Rep. 290; Leev.Simmons. (Wis.) 27N. W. Rep. 174; Carl v. McGonigal, (Mich.) 25 N. W. Rep. 516; Oswego Starch Factory v. Lendrum, (Iowa,) 10 N. W. Rep. 900; Amer v. Hightower, (Ca1.) 11 Pac. Rep. 697; Taylor v. Mississippi Mills. (Ark.) 1 S. W. Rep. 283; unless it was subseqllently sold by the fraudulent vendee to orie who purchased in good faith. and for a valuable consideration, Sleeper v. Davis; (N. H.)'6 Atl. Rep. 201; Neffv. Landis, (Pa.) 1 At1. Rep. 177; Hanchett v. Kimbark, (Ill.) 7N.E.Rep. 491; S. O. 2N.E. Rep. 512; Goodwin v. Wertheimerh(N. Y.) 1 N., E. Rep. 404; ,Perkins v. Anderson, (Iowa,) 21 N. W. Rep. 696; Oswego Stare Factory v Lendrum, (Iowa,) 10 N. W. Rep. 900. It maybe retaken from the poasession of an officer who holds, it nnder an attachment orexecjltion against the fraud,ulent purchaser, Ensign v. Hoffield. (Pa.) 4At1. Rep. 189; Oswego Starch Factoryv. Lendrum, (Iowa,) 10 N.W.Rep. 900; Taylorv.Miasissippi Mills,' (Ark.) 1 S. W. Rep. 283. The assignee for benefit of creditors is not a bona jiae purchaser for value. and takes no better title than his assignor, the fraudulent vendee. Goodwin v. Wertheimer, (N. Y.) 1 N. E. Rep. 404; Lee v.Simmons, (Wis.) 27 N. W. Rep. 174. The purchase of goods with the intention of not paying for them is a fraud which will justify the avoidance of the sale, Sleeper v. D!l'vis, (N.H.) 6 At1. Rep. 201 ; Farwell v.lIanchett, (B1.) 9N. E.Rep. 58; Hanchettv. Kimbark, (111.) 7 N.E.Rep.491; S.C. 2 v. Simmons, (Wis.) 27 N. W. Rep. 174 ; Carl v. McGonigal. (Mich.) N. E. Rep. 25 N. W.Rep. 516; Oswego Starch Factory v. Lendrum, (Iowa,) 10 N. W.Rep.900; Taylor v; Mississippi MillsJ (Ark.) 1 S. W. Rep. 283. So are misrepresentations as to solvency, and the' .concealment of insolvency, Ensign v. Hoffield, (Pa.) 4 At!. Rep. 189; Hanchett v. Kimbark, (Ill.) 7 N. E. Rep.491; Lee v.Simmons, (Wis.) 27N. W. Rep. 174; Oswego Sta.rchFactoryv.Lendrum, (Iowa,) 10 N. W. Rep. 900. But the mere fact of the purcliaser's' insolvency does n!)t render the purchase fraudnlent, unless it was made with no intention or expectation of nl\Ying for them, Dalton v. Thurston, (R.I.) 7 Atl. Rep.112; Mack v.Adler, (Ark.) 2 S. W. Rep. 345.
BROWER
v.
BROWER.
«(Jircuit COWl't, D. Minneaota. January 8,1887.) EQUITY-:--AooOUNTING-AnVANCEB ON SBCUlUTY OF IIumVOCABLE POWER OF ATTORNEY. .
In an action for an accounting wherein the a partne!ship, it appearing that there was no partnership, but that complamant, after taking from defendant an irrevocable power of attorney, authorizing complainant to take possession of the lands then owned, or which might thereafter be owned, by defendant, advanced the money to be put into real estate and a newspaper,on the security thereof, the court directed that thedefendantbe adjudged the owner of the rea.l estate and newspaper, that complainant have an equitable lien on the property for his advances, with and that the prop· erty be sold to satisfy the same.
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