McNeil v. Hansen

McFarland, J. After plaintiff had introduced his evidence and rested, the court granted a nonsuit and rendered judgment for defendant. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

We see no reason for disturbing the judgment. C. G. White filed his petition in insolvency on October 3, 1891, and in December following appellant was appointed his assignee. This action was commenced in February, 1893, to cancel and set aside certain sales of personal property and certain conveyances of real property made by said White to respondent on February 17, [216189]1—nearly eight months before the filing of the said petition in insolvency, and two years before the commencement of this action—and to account for and pay to appellant all moneys "which he had received from sales of part of the property which he had received from White—which moneys he had paid to White’s creditors. Respondent contends that the complaint does not state facts sufficient to constitute a cause of action; and the contention is, no doubt, difficult to answer. There are uncertainties and inconsistencies in the complaint; there is no showing in it that any of the creditors of White are complaining of the transfers and conveyances by him to respondent; it does not show, with certainty, what part of the described property was actually transferred to respondent, and what was retained by White; and its averments as to the consideration of the transfers are inconsistent. Respondent also contends that under section 55 of the insolvent law an action like the one at bar cannot be maintained by an assignee unless the alleged transfer was made within one month before the filing of the petition in insolvency. We mention these points because they are raised by respondent, and are important; but we do not deem it necessary to pass upon the sufficiency of the complaint. We will assume that the complaint states with sufficient certainty that on February 17, 1891, White was actually insolvent, and that Hansen knew it; that on said day he, by written instruments, transferred and conveyed to respondent Hansen certain described personal and real property, which included all his property; that these instruments were, in form, absolute, and in no way purported to be assignments for the benefit of creditors; that they were made, however, upon the consideration and with an oral understanding that respondent was to make sales of the property on as favorable terms as practicable, and from the proceeds of such sales pay White’s creditors, pro rata, in equal proportionate amounts to each; that respondent did sell some of said property, and paid the proceeds to White’s creditors;