133 U.S. 246

This was a suit by way of third opposition, brought in the circuit court of the United States for the eastern district of Louisiana, by Caesar Philippi, syndic of the creditors of Gilbert H. Green individually, and as a member of the late commercial firm and partnership of Gilbert H. Green & Co., of New Orleans, and also of Green, Stewart & Co., of Liverpool, England, in the suits of Bank in Winterthur v. Gilbert H. Green and Geilinger & Blum v. Gilbert H. Green, on the docket of said circuit court. After the answers were filed, the two causes were consolidated and tried by the court as one case. The submission, findings of fact, and judgment are as follows: 'This cause came on this day for trial, and the parties having filed a stipulat on in writing, waiving the intervention of a jury and submitting the cause to the court on the issues of law and of fact, with the request that the court do make a special finding of the facts, whereupon the court makes the following findings of fact: Geilinger & Blum, a commercial firm, domiciled and doing business at Winterthur, in Switzerland, filed their action against the defendant Gilbert H. Green on November 25, 1886, and on the 31st day of January, 1887, recovered a verdict and judgment in this court against Gilbert H. Green for the sum of ten thousand five hundred and nine 68-100 dollars, with interest. The Bank in Winterthur, a corporation organized under the laws of the canton of Zurich, in the Swiss republic, filed its action against Gilbert H. Green on the 25th day of November, 1886, and on the 31st day of January, 1887, recovered a verdict and judgment in this court against Gilbert H. Green for the sum of forty thousand three hundred and six 64-100 dollars, with interest. On December 26, 1886, Gilbert H. Green made a surrender under the insolvent law of the state of Louisiana, individually and as a member of the commercial copartnerships of Gilbert H. Green & Co., of New Orleans, and Green, Stewart & Co., of Liverpool, England, in the form and manner set forth in the certified copy of the record of said insolvent proceedings, No. 19,734 of the docket of the civil district court, parish of Orleans, which said record is made part of the finding of facts in this cause to show the character and contents of the proceedings had in said cause. That on or about the 20th of May, 1887, under writs of alias fi. fa. issued in the case of Geilinger & Blum v. Gilbert H. Green, and in the case of the Bank in Winterthur v. Gilbert H. Green, the marshal of this court levied upon certain real estate described in the petition of Caesar Philippi, syndic. This property was acquired by act before Theodore Guyol, notary public, of date May 19, 1882, and said deed is hereto annexed and made part of this statement of facts, to show the form, purport, and contents thereof. At the time that this levy was made the said property was in possession of Gilbert H. Green and his wife, and was their matrimonial domicile, and the said property had been continuously in possession of the said Green and wife from the date of the purchase thereof down to the date of the seizure thereof under writs of fi. fa. in these causes. Up to the time that this seizure was made no demand had been made upon Green and wife by Caesar Philippi, syndic, for the said property, and no claim of title or possession had been set up by the said Philippi, syndic, for the said property. And thereupon the court, upon these facts, finds the issues of law in favor of the said Caesar Philippi, syndic, and it is thereupon ordered, adjudged, and decreed that the seizure of the said property above described under the alias writ of fi. fa. issued in these causes, dated May 20, 1887, be set aside, and the property released by the marshal, and that R. B. Pleasants, United States marshal for the eastern district of Louisiana, be restrained and enjoined from proceeding to advertise and sell the property herein claimed; upon this condition, however, that said Philippi shall pay all the costs which have been incurred in the making of said seizure, and shall also present and file in this cause an order from the civil district court for the parish of Orleans, Division E, authorizing and directing him to take possession of said property from the said Green and wife, and to administer the same as part of the insolvent estate of the said Gilbert H. Green committed to the gharge of the said court and the said syndic. It is further ordered, adjudged, and decreed that Geilinger & Blum and the Bank in Winterthur be condemned jointly to pay the costs of this suit. Judgment rendered June 13, 1887. Judgment signed June 17, 1887.' Annexed to the findings was a certified copy of the insolvency proceedings and of he deed to Mrs. Green.

The schedule of his assets showed this entry therein by Green: 'The house in which I reside on St. Charles street, and the furniture therein, is the individual property of my wife, and I have no claim thereto.' From the proces verbal of the meeting of the creditors, it appeared that Philippi was unanimously elected syndic, and letters issued to him accordingly; that 19 out of 27 local creditors of Green & Co. appeared and took part in the proceedings, accepted the surrender of property made by the insolvent, and voted to grant him a full discharge; and that the court appointed an attorney to represent the absent creditors, who declared that he had taken full cognizance of the meeting. The deed was dated May 19, 1882, and purported to grant, bargain, sell, assign, convey, transfer, and deliver with full warranty to Mrs. Green, wife of Gilbert H. Green, 'by whom she is herein assisted and authorized,' the property therein described. The notes for the deferred payments were signed by her, but it did not appear in the deed that the purchase price was paid for with the paraphernal or separate estate of Mrs. Green.

Upon the trial a bill of exceptions was taken, which states that Geilinger & Blum and the Bank in Winterthur 'placed Gilbert H. Green upon the witness stand, and offered to prove by the said Gilbert H. Green that in making the surrender of his property, as set forth in the record No. 19,734, division E, civil district court, referred to in the statement of facts in this cause, he did not intend to include in that surrender the property seized in this cause, for the reason that he was informed and advised by his counsel that the said property was the property of his wife, and was not liable for his debts or covered by the said surrender; to the introduction of which testimony the said Caesar Philippi, syndic, then and there objected, on the ground that the said testimony was irrelevant, and that Green's intention in making his surrender would not affect the issue in this cause, which objections the court sustained, and refused to allow said testimony to be adduced. To which ruling Geilinger & Blum and the Bank in Winterthur then and there excepted.' To the judgment rendered as above, the pending writ of error was sued out from this court. The errors assigned are: (1) That the court erred in refusing plaintiffs in error the right to prove the facts set forth in the bill of exceptions herein filed, (2) that the court erred in concluding, as a matter of law, that Gilbert H. Green had surrendered the property seized in this cause under and by virtue of the insolvent proceedings No. 19,734 of the civil district court, (3) that the court erred in ordering the release of the property herein sued for.

E. H. Farrar, B. F. Jonas, and E. B. Kruttschnitt, for plaintiffs in error.

[Argument of Counsel from pages 250-252 intentionally omitted]

T. J. Semmes and Alfred Goldth waite, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

It is conceded by counsel for the plaintiffs in error that the St. Charles street property was under the law of Louisiana community property, and liable for Green's bedts, and should have been surrendered to the syndic; that if Green had casually omitted it from his schedules it would have passed under the control of the syndic; and that if he had fraudulently omitted the property from his schedules, and put the title in the name of his wife, before the insolvency proceedings, an action would lie by the syndic to recover it. But it is contended that as Green declared the property to be his wife's, and did not intend it to go under his insolvent proceedings, and as his surrender in the form and manner as made was accepted, and the syndic set up no claim of title or possession until after the seizure by the marshal, 'the property remaining thus in Green's actual possession was not in gremio legis so as to exclude his foreign creditors, who were in no manner bound b his insolvent proceedings, from levying their writs upon it.'

Sections 1781 to 1822, inclusive, of the Revised Statutes of Louisiana, constitute a a system of insolvent laws. Rev. St. La. 1870, p. 353. Section 1791 reads: 'From and after such cession and acceptance, all the property of the insolvent debtor mentioned in the schedule shall be fully vested in his creditors; and the syndic shall take possession of, and be entitled to claim and recover, all the property, and to administer and sell the same according to law.' These provisions have formed part of the laws of Louisiana for many years, and the supreme court of that state has* repeatedly held, in respect to them, that when a cessio bonorum has been accepted by the court and the creditors, and a syndic has been appointed and qualified, all the property and rights of property of the insolvent are vested in his creditors, represented by the syndic as their trustee, and pass to the creditors by the cession, whether included in his schedule or not. Dwight v. Simon, 4 La. Ann. 490; Muse v. Yarborough, 11 La. 521; West v. His Creditors, 8 Rob. (La.) 123; Dwight v. Smith, 9 Rob. (La.) 32. These cases sustain and are therefore cited to the proposition by Chief Justice TANEY, delivering the opinion of this court in Bank v. Horn, 17 How. 157, 160. The rule relates to possession and disposition, and it has been frequently decided that the surrender of the insolvent does not divest him of the title to the property surrendered, though it strips him of the power to control, alienate, or dispose of the same during the administration of his estate, and so vests it in the creditors, or in the syndic for them; that it is no longer liable to seizure, attachment, or execution, but is held to be administered and disposed of according to law, for the benefit of the creditors. Rivas v. Hunstock, 2 Rob. (La.) 187; Jacquet v. His Creditors, 38 La. Ann. 863; Walling Heirs v. Morefield, 33 La. Ann. 1174, 1177; Nimick v. Ingram, 17 La. Ann. 85.

It is therefore immaterial that title may not vest absolutely in the syndic or creditors. It is enough that the surrender operates as a transfer for the specific purpose of the disposal of the property and the distribution of the proceeds in concurso among the creditors and is protected accordingly. Laforest v. His Creditors, 18 La. Ann. 292; West v. His Creditors, ubi supra. In Nimick v. Ingram, 17 La. Ann. 85, Nimick & Co., judgment creditors of Ingram, issued execution against him from the fourth district court of New Oreans, where they had recovered their judgment, and caused property to be seized thereunder after Ingram had gone into insolvency and made a surrender in the fifth district court. The proceedings in Nimick & Co.'s suit were transferred to the fifth district court, and cumulated with the insolvent proceedings. Thereupon, Ingram took out of the latter court a rule on Nimick & Co. to show cause why all further action under the writ of fi. fa. should not be stayed and set aside, which rule was made absolute, and from that order an appeal was taken to the supreme court of Louisiana. There Nimick & Co. urged that by their diligence they had discovered the property seized by them, and that, Ingram having fraudulently attempted to screen the property, it was legally ineompetent for him to take any steps in relation to it to affect their rights; but the supreme court said: 'What these rights are it is not necessary for us to decide, a d being satisfied, as we are, that they can only be determined contradictorily with the mass of the insolvent's creditors, before the court seised of the concurso, as the whole proceedings in the suit pending originally in the fourth district court were * * * properly ordered to be cumulated with the insolvent proceeding in the fifth district court. * * * Any informality in the proceedings, when questioned, must be by direct action. No creditor will be permitted to disregard and treat as an absolute nullity a judgment accepting a surrender made by his debtor, and granting a stay of proceedings. The acceptance for the creditors by the court of the ceded estate vests in them all the rights and property of the insolvent, whether placed on the schedule or not, and the syndic may sue to recover them. But any creditor may show, provided it be contradictorily with the mass of the creditors, or their legal representative, that any particular object or fund is not embraced in the surrendered estate, but is subject exclusively to his individual claim; and this is the remedy of the plaintiffs, if any they have.' Nimick v. Ingram is quoted from and approved in Tua v. Carriere, 117 U. S. 201, 207, 6 Sup. Ct. Rep. 565.

In the case in hand, the order of the court in insolvency stayed all judicial proceedings against the insolvent and his property, and, by the acceptance of the cession, passed all the insolvent's assets to the syndic for the benefit of creditors; but its operation was not confined to the property specifically named, nor did the acceptance by the creditors have that effect. If property be omitted by mistake or with fraudulent intention, it is the duty of the syndic to have the schedule amended so as to include it, and to take possession and administer upon it, (Chaffe v. Scheen, 34 La. Ann. 686,) and it is the duty of the creditors to bring it to his attention, that he may do so. The evidence offered by appellants that Green did not intend to include this property, because advised by counsel that it was not liable for his debts, was properly excluded, as his intention could not control the operation of the law, or defeat the rights of his creditors. The property was named in the schedule as belonging to the wife individually, and therefore not claimed by the debtor; but any creditor, by inquiry, could have ascertained the circumstances, and been informed of its liablity under the law. There is nothing to impugn the good faith of the syndic; and, if there were, he could have been compelled to act and was liable to removal. Rev. St. La. § 1814. Nor was there any element of estoppel involved in the action of the creditors who signed the consents to Green's discharge. The surrender which they accepted covered all the insolvent's assets, and, even if they were laboring under the erroneous belief that this particular property was not subject to their claims, they would be entitled, so far as appears from this record, to share in its proceeds when the mistake was discovered. No other creditor was misled to his injury by their action, and no adjudication foreclosed their rights.

It is said, however, that insolvency proceedings and laws can have no extraterritorial effect, and do not affect or control non-resident creditors, unless they voluntarily make themselves parties to the proceedings. And it is argued that as these were foreign creditors, who had not made themselves such parties, and had sought relief through the United States circuit court, that placed them on different ground as to the property of an insolvent from that occupied by the creditors of his domicile. But, so fa as the property of an insolvent is concerned in the jurisdiction within which proceedings against him are taken, its destination is fixed (existing priorities being of course respected) by the laws of that jurisdiction. The insolvency decree is in the nature of an execution, and, though it cannot by its own force attach assets in another state, it takes the assets within its own; and while non-resident creditors are entitled to come in, pari passu, with domestic, if they do not do so they cannot participate in the distribution. By the insolvency proceedings Green's assets were placed in gremio legis, and could not be seized by process from another court. Peale v. Phipps, 14 How. 368, 375; Tua v. Carriere, 117 U. S. 201, 208, 6 Sup. Ct. Rep. 565. What the rights of the appellants might be if they declined to prove their claims or intervene in the state court, upon the termination of the adminstration there, it is not necessary to consider. Williams v. Benedict, 8 How. 107, 112; Bank v. Jolly's Adm'rs, 18 How. 503; Green's Adm'x v. Creighton, 23 How. 90, 107. The conclusion that, under the particular circumstances disclosed, this property formed part of the assets belonging to an administration pending when the writs of fi. fa. were issued, determines the invalidity of the seizure under them. Railroad Co. v. Gomila, 132 U. S. 478, ante, 155. The judgment of the circuit court released the property upon condition that the costs in the making of the seizure be paid by the syndic, and that he present and file an order from the state district court authorizing and directing him to take possession of the property, and administer the same as part of the insolvent estate of Green. This was an eminently judicious and proper order, apparently effectual to secure the appropriation of the property to the claims to which it was subject, while these judgment creditors were absolved from the expense incurred in emphasizing the fact of its liability. bility. We see no error in the record, and the judgment is therefore affirmed.