Page:Federal Reporter, 1st Series, Volume 10.djvu/126

 lie FKDEBAL REPORTER. �Such an adjudication prior to the filing of the bill operates as an immediate sequestration of the debtor's eflFecta to the use of credit- ors, and cuts off the receiver's inchoate right of action as it does that of the creditor himself. Johnson v. liogers, 15 N. B. E. 1. Up to that time the receiver in this case had done nothing evincing any dissent to the assignment. As receiver he might have already ac- quired other property belonging to the judgment debtor sufficient to satisfy the judgment upon which he was appointed receiver; and in that case he would have had no inducement, nor even any legal right, to assail the questionable title of an alleged fraudaient grantee ; or he might doubt his ability to make such an attack successfully. Though voidable, the fraudaient transfer was not void ; and it might be acquiesced in by him, or by the creditor whom he represented, at his election. Rapalee v. Stewart, 27 N. Y. 310; Bahcock v. Dill, 43 Barb. 577. �The title to this property, therefore, necessarily remained in the voluntary assignee until it was legally avoided, or until due legal steps were taken by the receiver for that purpose; and no lien could be acquired by the receiver until he gave notice of his election and inten- tion to avoid it, or by suit brought for that purpose. Weed v.Merce, 9 Cow. 728, 729; Becker v. Torrance, 31 N. Y. 636, 639; 0M« v. Kelly, 12 Pa. St. 323; Fiell v Sands, 8 Bosw. 685; Conger v. Sands, 19 How. Pr. 78. �Before any such steps were taken the right to the property was, by section 5046, vested in the assignee in bankruptoy and thereafterthe latter, aecording to the decisions of the supreme court above eited, had the exclusive right to take proceedings to avoid the assig nment. �4. To warrant the court in setting aside an assignment for the ■equal benefit of all creditors, at the suit of one creditor seeking to appropriate the whole assets to his own claim, the proofs of fraud- aient intent must be clear and convincing. Prominent among the proofs urged in this case is the faot alleged that the debtor, by means of an answer without merits and through dilatory proceedings, delayed the recovery of the creditor's judgment as long asit was in his.power, and made the assignment only at the last moment prior to the recov- ery of the judgment, wMch eould no longer be postponed. An assign- ment under such circumstances for the equal benefit of creditors, or a petition in bankruptcy, was rather the duty of the debtor than evidence of fraudaient intent. 2 Spence, Eq. Juris. 350; Mayer v. Hellman, 91 U. S. 500 ; Hauselt v. Vilmar, 2 Abb. (N. C.) 222. If the assignment is legally complete and perfect, and is intended to devote, and does ��� �