BERNHEIM
'U.
BIRNBAUM.
885
ceipt from plaintiff's attorneys, and his testimony in this respect is supported by that of one Gilbert, an attorney, who saw and used the receipt in the trial of a subsequent case. Defendant testifies that years after he obtained an assignment of this judgment,or rather an order for its process, ftom one of the plaintiff's attorneys, and subsequently secured its collection and satisfied the judgment, ,and his testimony finds support from the records of the case. Kellogg's testimony as to the agreement . to obtain an assignment is indefinite and nnsatisfactory. Did defendant receive payment of the full consideration? I must say I think the question is a little doubtful. But these things must be noticed: It does not appear what, if anything, defendant paid to obtain the control of this judgment. Kellogg remained for a year or two the and for a series of years the owner of a owner of this entire defendant· made large 'undivided' interest in it. During all' those no to collect from Kellogg, or from this property, that which he now cIailllil was'the unpaid portion of the price.. Such inaction is very significant. And while I do not think the question entirely clear, it must be adjudged that he has failed to prove this affirmative defense. Hence, as, the' mistake in the description unquestionably existed, the plaintiff as prayed for. " i'" "
BERNHEIM and others
BIRNBAUM and another, Assignee.
(Oircuit Oourt, 8. D. Georgia, E. D. April 28, 1887.)
1.
COURTS.-..JuRISDICTIONAL AMOUNT-DISTINCT DEMANDS.
Under the act of March 8,1887, an action may be maintained in the United States circuit courts where the matter in dispute exceeds. exclusive of interest and costs, the Bum ,and value of $2,000, although itis made up of distinct demands of less value than $2,000, and although the plaintiff may have-acquired such demands by assignment.
'2. SAME-FRAUDULENT CONVEYANCES-STATE STATUTE.
Where a statute of a state provides that in the'case,of fraudulent assignmen,ts a court of competent jurisdiction is authorized to declare the assignment void, although thll assignee is not shown to have notice of the fraud, the equity courts of the United States having jurisdiction can enforce rights under such statute. Jaffrey.v. Brown, 29 Fed. Rep. 476, followed. (8yllabu8 by tMOourt.)
InEquity. Garrard & Meldrim, for plaintiffs. (Jhislwlm& E1"'W'i:n, for defendants. SPEER, J. This bill is brought by the. complainants against the defendants, alleging this state of facts: The defendant Birnbaum carried {)n business in the city of Savannah. He was insolvent. He bought large quantities of goodson credit. A very short time' preceding his
886.S
FEDERAL
declaration of insolvepcy he kept QD:J>urchasing goods, making all these pUl'chases without giving any premoDitionof his insolvency. Suddenly is made. Max Birnbaum is out of business, and the assignee is in P9ssession of his stock of goods, a large amount of which is yet unpaid for, and on which Max llfl,S given sl/me of his creditors, and one relative, to-wit, Fabian Birnpaum, ,his father, mortgages, covering all ,is fraudulent; of the stock. The bill charges that this whole that Birnbaum boughUhe goods knowing that he was insolvent, and not intending to pay for them; that the assignee knew it. The mortgages and assignment are charged to be fraudulent, and the prayer is made that they Qe declared null and void; that the complainants, so far as they are able, may be allowed to identify the goods which have thus been fraudulently obtained from them, and to retake them,and that they have a general decree for the balance due them. The bill is: demurred to on: two generalgroqnds: , " , First. That the act of March 1$87, deprives thecoul"t of jurisdiction. The language relied on by counsel is: "Nor shall any circuit or district court have cognizanceoj' any suit, except up()n foreign bills of exchange, to recover, the contents of prQmissory note .,r other chose in action, in favor of an! assignee, or of anysu,bsequent hold.era, of such instrument payable to beater, and not made by'any corporation, unless such suit might have been prosecuted in such court to recover tllfl said contents if no assignment or transfer had been made."
a,
It is insisted that the complainants, Bernheim, Bauer & Co., added to their claim against the defendants an open account against him assigned to them by other parties, and ,then ,brought the bin for the whole amount, and that this is incompetent, because the assignor of the account could not have brought the suit, it being, alone, less than the jurisdictional limit. This is perhaps the first time since this important the laws conferring jufisdiction on the United States court WaS enacted that, it h/l.s been to construe it.'. The language of the act above referred to is am biguous and involved to an unusual and remarkable extent, especially when its fundamental importance is considered. . . , ' " The language, "unless such 'Suit might have been'prosecuted to reMver said contents if no assignment or transfer had 'been made, II can reference to the of amount. Thathaa heell definitely provided for in the first section ofthe act. That provides where the matter in dispute exceeds, exclusive of interest and costs, the sum and value of $2,000, the court shall have jurisdiction. Is there any good reason why the matter in dispute cannot be composed of other claims, honestly amount? acquired, which in themselves are less than· None has been suggested in argument, nor has any occurred to the court; besides, it has been expressly held to be legitimate in Hammond v. Cleaveland, 23 Fed. Rep. 1. It issaid.tbl\tthis decision was ,under, the act,of 1875, where the words "recovedhereon," and,not "recov:er the contents," are Qsed. This is a distinction without a difference.. Again, it is:said , that that was affected by,a California statute providingJor join-
BERNHEIM V., BIRNBAUM.
887
lng claims, but a statuteoflike practice obtains iIi Georgia. Code, 3261. The language of the recent act existed substantially in the act of 1789, which has been repeatedly construed by the courts; and the decisions so construing lead the court to the conclusion that the question of citizenship is all that the language in question has reference to. The congress of the United States could not have intended to deny to a citizen the right of access to the United States courts where he had a matter in dispute amounting to more than $2,000, made up of cl;lOses in action of less amount than $2,000, provided. always, that these were honestly assigned to him and that the title passed. Besides, the claim of Sahlein & Co. is more than $2,000, and in itself would give the court jurisdiction. Seccmdly. That there is no equity in the bill. 'Itisdifficult fortbe court to understand how counsel can seriously insist that there are no grounds in this bill for equitable interference. allegations of the bill are true, and they ate admitted by the demurrer, it fairly bristles .with grounds of equity. In a word, (if the bill is true,) it is an attempt on the part aiMax Bimbaum to "break full-handed," in the expressive language oftbeday, to buy on credit with a fu,11knowledge of his insolvency, to pile up goods amounting to thousands of donars, to continue to bny to the moment of the assignment; and.when the stock has become sUffl,ciently large, without a premonition, the firm of Max Birnbaum the goods he had bought are found in the hands of his assignee, or are covered with mortgages to his favored creditors. It is said that the mortgages were fraudulent, and the prayer is that the assignment, also alleged to be fraudulent, be declared null and void,and that thegoOds'of complainants, capable of identification, be permitted to beretaken by them. It charges that the has power to do as he vritli the property and is selling it rapidly. The billdoes not appear to be multifarious, and such bills have been repeatedly entertained, and this is a case which is peculiarly fitted for equitable jurisdiction. There may bea remedy at law, but it is not so plain, so complete, and so adequate as is the remedy in equity. The legislature 01 "Georgia, in the act of 1884-85, gives certain equitable rights as against fraudulent .assignments,. and these rights the courts of the United States can administer in proper cases where they have jurisdiction. Section 5 of that act proviqes H that in all cases of voluntary assignment for the benefit of creditors, when the same may be attacked as fraudulent, it shall not be <necessary to show fraud or collusion, or notice thereof to the assignee under such deed of assignment, to render the same ,void; but" when.fratid can be shown in the assignor, this alone shall be 'sufficient to authorize a court of competent jurisdiction to declare such assignment void. No assignment shall be set aside except upon a direct proceeding ,filed for the purpose, and no creditor of the assignor shall obtain any 'pmol'ity or preffjrence of payment out of the assets assigned on any judgment rendered after the filing of the bill in case the deed of assignment is set aside and decreed to be void." Therefol'e it is held that the bill is properly before the court. These questions were considered by this.CDurt .and decided in Jaffrey v.. Broorn, 29 Fed. Rep. 476.
888
FEDERAL REPORTER.
It may be true on the hearing that all of these damaging .allegations will beriegatived by :the proof, but {or the present thecQurt will entertain jurisdiction and will proceed to hear evidence upon the merits.
KELLERM:A:Nl1, AULTMAN
and others. May 12, 1887.) , "
, ,i,,'
(Oi'T'cuit Oourt.
11.: Nebraltka.
11 JyQG:M;ENT-:LIEN-DATliJWIUJN AIJ.'TACHES.
,
,An owner ofland occlJpiedh as a homestead from 1873 to January 17, 1883, . on whieh date he conveyed it to, another person. On Fe.bruary 4, 1888, duringtheJanuary,; term of the COUlIt, a judgment was'rendered against him in a.suit, pegun Held, that iUl)der; Codll Civ. Proc. Neb. !\ 477, by which jUd$nlent is made a lien ul?on land from the first day of the term at whiqh the judgment is rendered Mses where the actidn iiI commenced at a term 1)fcourtprior to that, in which the judgment is' entered,· the lien of the judgwent was carril!d back to, the'commencement of the January term, 1888, and tool,i.: priority in .:>ver thecC,lDveyance.
a
2.
187!i,'e.4ii,J section 1 of which enacts that the homestead exemption shall .spll/ngas the same and by .the fiS such homestead;" a'judgment agamstthe owner of land IS a hen which remains dormantwlile the land is occupied. as a homestead,but it becomes living and o:per.a,tive as soon as by cQnveyance or homestead occupation is abandoned. . . 3. S..urlrl"::'EXTE:N10F RIGHT. . .,ThE! NebtRskti.:statute of 1877j'Which. without in terms repealing the existing l",w. provided that the hQmestead of every family should be exempt from jUdiciaLsa1e where there was no special declaration of the statute to the contrary,did not supersede the provision of the prior statute Which limited such exemption the duration of the homestead occupation.
. Un·c'3r.ih. homestead exemption :law of Nebraska of 1875; (Sess. Laws Neb.
LIEN·
In. Equity . Bill to restrain sale of lands in execution. This case is submitted on demurrer to the bill. The facts as alleged arebriefiy as follows: From 1873 to 1883 one Van SIyke owned and':occupied the land levied upon as his homestead. January 17, 1883, hecoDveyed the land to the plaintiff's grantor. The lands exceeded iUivalue $2,000. The judgment of Aultman v. Van Slyke, was obtained onrnotes, dated onOetober 1, 1878, in a suit commenced October 31, Hl8'2,' in which summons,was served November 3, 1882, answerfiled· December 4,1882, ,and jUdgment rendered February 4, 1883. Thisjudgmentw8s.at the January term, 1883; the term commencing 011 the January, 1883, and before the conveyance above referred to,toplaihtiff's grantor. At the time of filing this bill execution had been: levied upon the land unCler the judgment above stated, and this action is brought to restrain Buch sale. Three questions arise: First. Did the fact that the judgment was not rendered until after the conveyance by Van Slyke, thejudgment.uebtor, prevent it from be-
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