BOLTZ V. EAGON.
445
that she was ignorant of the wrongs, but, on the contrary, by plain implication showing that she must have been familiar with the one wrong nearly 30 .years ago, and absolutely showing that she was informed of all the wrongs more than 12 years before she br01\ght the suit, it seems no more than justice to hold that as against her, as against any other contracting party, the doctrine of laches must prevail. This is one of those cases where the insured has. lived a great, perhaps an unexpected, length of time; and the policy, which in the inception was one beneficial to her and prejudicial to the company, has, by the lapse of time, reversed its situation, and now the company has a contract which is benefioia;l to it, and which is prejudicial to her. Under these circumstancea, ,I think the demurrer should be sustained, and it is so ordered.
BOLTZ
v.
EAGON.
«(}lrcuit Court, E. D. Missouri, E. D. March 27,1888.)
J.
ATTACHMENT-PROPERTY SUBJECT TO-PROPERTY IN HANDS OF ASSIGNEE FOR BENEFIT OF CREDITORS.
Property in the possession of an assignee for tbe benefit of creditors under the Missouri statute is not exempt from seizure on a writ of attachment issuing from thE! fedetal court in a suit by a non-resident against the assignor.
S.
8.AME.-RIGHTS OF
Where property assigned as provided in tbe Missouri statute for the benefit of creditors has been seized under a writ of attachment issuing from the federal court. in an action by a non-resident against the assignor, the assignee may intervene in the attachment suit, and have his right to the property determined.
In Equity. On motion to quash a writ of attachment. Ellis, for plaintiff. Dyer, Bcmd& Mills, for intervenor. THAYER,J., (orally.) In this case a writ of attachment was sued out by the plaintiff on the 13th of March of the present year, and the writ was levied upon a stock of merchandise. On the 16th day of March, the marshal obtained an order of sale pendenw lite, and the property has been advertised for sale on the 28th of this monU).. On the 21st of March, G. Lehman filed an intervening petition in the case, representing that on the 8th day of March H. C. Eagon made a general assignment for the benefit of creditors to himself as assignee; that on the 9th day of March he took possession of all the property of Eagon, unq.er such assignment, and was proceeding with his duties as assignee, when all of the property covered by the assignment was taken out of his possession by the marshal, under the writ of attachment against Eagon. In view of these facts, the assignee asks to have the writ of attachment quashed, and the property released to him as ass.ignee for the purpose of administration under the state la w concerning assignments.
·i
'of attaohment. assignee acted pr<rperly in filing the inter-ven'irigpetition in this cas61."The practice of filing 'such intervening petitions for the protection of the :rights 'of third: parties is expressly recog-. nizedin the case ofKM'pphtdcrrjv. Hyde, 4 Sup. Ct. Rep. '21;'Also in tbecase Of GiJlnibel:v. PiJ,kin, 113 U, '8.545,5 Sup. Ck Rep. '616; and inthelast-named case, (8 Sup, Ct. Rep'. 379,) when it came up fClt' final hearing in the supreme court of the United States, the praC}tice was a"gain approved ; So that it Ii-lUst be conceded that the assignee hasarlght to file an intervening petition' of any sort deemed necessary for the protection of his interest and the trust he represents. But'we think it very clear that the property when levied upon under the writ of attachment issued by this court (although the property was then in the possession of the assignee) was not in the custody of the law, and that the motion to quash the attachment must therefore be overruled. It has never been the rule in state that property held by an assignee is in the custody of the IJw in such sense as to exempt it from seizur.e under ,R1"+it,ofattachment issued against the assignor.. One of the recogn!ze4 methods in this state of testing the validity of a. voluntary assi.gnment is to sue outanattachmerit against the assignor, and levy upon the assigned / effects. In the case of Wise v. Wimer, 23 Pinneo v. Hart, 30 Mo. 561, and in the case of State v. Keeler, Mo. 548, and in some other eases which I do not recall, creditors sued out attachments against the assignors and caused the same to be lEilvied upon the assigned effects in the hands of the In 'those cases it was held that the title of the assignee would prevail over that of the attaching creditor, unless it was shown that both the assignor and the assignee had participated in a scheme to defraud the creditors of the assignor. Some discussion was had in one of the cases as to the character of the fraud on the part of the assignee that would suffice to destroy his title uniler the assignment, and it was held, in effect, that the assignee must actively participate in some 'scheme to defraud, concocted by the assignee. in' order to impair his title. But it was not denied in any of the cases that a creditor of the assignor, if he choose to take the risk, might test the validity of the assignment by suing out an attachment, and causing the same to be levied on the assigned effects in the hands of the assignee. Now, as such praC}tice is sanctioned by the state courts, and as property held by an assignee is not there regarded as being in the custody of the court so as to preclude a creditor of the' assignor from attaching it if he sees fit, it follows that we must accord toe. non-resident creditor suing in this court the same right to test the validity of anassigriment by levying on the .assigned effeCts that would be accorded toa creditor suing in the state 'eourts. It is furthermore suggested 'iii! 'a reason why we should release the attached effects that, inasmuch as the marshal has le\1ed on the property, the assignee is deprived of the right to reclaim the property in specie by
:hlindl! was in fact in,the ,oostodyofthe lltate collrt:hli.vingchargeof the assignment, abdforthat fua$Onwas not subject' to: seizure under a writ
the :ground that the property in his
... })OLTZ ,1l. lllAGON.
447
a writ of replevin, as he might do if the property had been seized by the sheriff of the eityofSt.Utuis, under process emanating from a state court. It is furthermore urged that the assiguee desires to regain possession of the property for the purposes of the assignment, and that he ought to have the privilege of reclaiming tha property by some form of proceed. ing, and that he should not be left to his ,remedy by a suit against the marshal for·awrongfullevy. We have given attention to this plea, and we. mUl;lt c()ncede to theauthoritieseited, the property in question cannot be J:epleyied from the a writ emanat. ing from the state court. It was so held in' (JoveU v.Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355, and in several other cases; and that is clearly the law. But we conceive that, whileit'is true that replevin will Bot lie against the marshal in thecoQ,rts of the .state, yet that the assignee may :file an intervening petition in this case, setting up his claim to the property; and that under such a petition an issue may be framed, and tried here,and'his tight to thepropertyl)e determined as/effectually in this case as bya suit in replevin brought in the state court orin the federal court. In avery late (lase decided by the supreme court of the ,united States, (the case before refnd to of Gumbel v. & Sup, Ct. Rep. 379,) we understand that the right to intervene. under the circumstances whichno,wexist. is recognized. When tbemarshal court, under an orattachment, seizes property which is claimed by a third: party j it may often happen that the claimant for some reason desires a return of the property in 8pecie, and that his rights will not be fully secured by ,an action at law against the marshal for an unlawful levy. InaJ.1such cases we think he may intervene in. the suit in which . the attachment or execution issued, and bave his right to the property determined. by such intervention. InasIUuch as replevin will not )i.e against the marshal, no remedy is within reach of the claimant to recover the property itself other than the one last suggested,and we think that the remedy by intervellingpetition filed.in the case is suggested and fully appr(>Ved in the case last referred to of Gumbel v. Pitkin. In the case, therefore, ·if the assignee desires for any reason to reclaim the property now in th.ehands of the marshal, and does not de-sire to . Pl'osej:lute .an action against the marshal for a wrongful levy , we will grant 'him ,leave within fivedays from this date to file an interven· ing petition,setting up his. title to the.property; and under such petition we will frame an issue and try his right to the property, and if it is found that he is entitled to.it as againstthe attaching creditor, we will order the marshal to.turn the p'\operty over tobim in specie) but in the mean time, as the sale of the pt:operty is advertised for the 28th instant, we will direqt the marshal to postpone the sale. .The motion to the attachment, however, is overruled. \
BREWER,
,J. ,concurs.
.
JrElDERAL REPORTER.
LoNGDALE· IRON CO. ".POMEROY IRON CO. et
ale
(Oircuit Oourt, S, D. Ohio; W; D. March 00, 1888.) HUSBAND ERS.
AND
WIFE-WIll'E'S SEPARATE .
Where stock is entered on the company's books by authority of a director in the name ·of his wife, he afterwar.ds voting and representing the stock, and it does not appear tbatshe authorized or subsequently ratified his acts, or receivec;l any dividends from, or claimed any interest in, the stock, it is error to c,harge her separate- estate with the debts Of the company tothe amount of stock thus standing in her name. )
In -Equity. Exceptions to report of special master:. A{n'ed Yaple and E. A ·. Guthrie. for complainant. La'Wl'ertce Maxwell, Jr., for defendants. JACKSON,J. On exceptions by Lawrence Maxwell, administrator of the estate of Julia A. Pomeroy, deceased, to the report of the special master, filed herein April 8, 1887,.in and by which Mrs, JuliaA. Pomeroy is found to be a stockholder in said Pomeroy Iron Company, and her estate charged accordingly. It appears from the record and report of the Inaster that the-Pomeroy Iro11 Company, a manufacturing corpO'ration, incorporated under the laws of Ohio, became insolvent in 1878, and suspended business, leaving large debts outstanding anduusatisfied. This indebtedness having been generally reduced to jlldgments, and the creditors'remedies at law against the corporation being exhausted, the present bill was filed by the complainant on behalf of itself and all other creditors of the company seeking to hold the stockholders individua:lly . liable on their respective holdings of stock to the extent necessary to pay off the debts of the corporation, (stockholders being personally liable, by the laws orOhio, in such cllses, for the amount oftheir stock,if needed to discharge the debts ofthe company,) A referencewa.s-directed to a special master to report tiie indebtedness ofthe company, the names of its stockholders, and the several amounts of stock held and owned by them respectively, etc. The special master found and reported that Mrs. Julia A. Pomeroy was a stockholder in the company at the date of its failure to the amount of 88,300, which, with interest to April 1, 1887, made her estate liable for the sum of $12,443.07. To this finding and report of the special master the administrator of Mrs. Pomeroy's estate files exceptioll, the general ground of his exception being that the proof does not establish the fact, which wasdisptited and controverted, that Mrs. Pomeroy waR a stockholder as reported. The evidence and report of the master disclose the following state of facts. On the st{)ck ledger and transfer book 'of the company there is an entry under date of June 27, 1866, which purports to he a tra.nsfer by the company to Mrs. J. A. Pomeroy of 50 shares of itsstock,-par value, $5,000. In January, 1867, a stock dividend of 115 per cer,t. was declared by the company, making an increase of 57 i shares, cf the nom-