Page:Federal Reporter, 1st Series, Volume 5.djvu/361

 IN B£ LAWRENCE. Sed �In THE Mattbb op Laweenoe and others, Bankrupts. �IDistria Court, 8. D. New York. Janury 15, 1881.) �BANKEUPTCT — StTEVIVOKS OF FlIlM — CHOSE IN ACTION— JtJDaMBUtT — �LiBN ON KEAii EsTATE— Makshaxling Firm Assets— GbnkbaIi Ab- siGNMENT m Trust fou Creditors— Signature of Firm — Titi,k OF Assignee m Bankrupct — Estoppel— Subrogation of Surettes. �Where the five bankrupts and their father constituted a firm, and assuchusedreal estate bëlonging to him as flrm property, and he died, leaving it to them by will as tenants in common, and they alone con- tinued the same business under the name of the old flrm, assuming its liabilities, taking ail the assets and using the real estate as part there- of, and they brought suit in the state court on a promissoiy note reeeived by the old flrm on account of goods sold by it, which resulted on appeal in a judgment against them for costs— the judgment, the docket, and their own complaint describing them as " surviving part- ners of themselves" and their deceased father — and four days before it was docketed they made an assignment of ail their property, includ- ing the land, signed by the three of them only individually and in the flrm name by one of them as attorney in fact, there being no other evidence of his authority to sign for the other two, — �On application of the judgment crediter for payment out of the pro- ceeds of the sale of the land by the assignee : �Edd, that the description of the bankrupts as " survivors" related not to the capacity in which they sued, but the mode of deriving their title, and as such was mere surplusage, and the lien of the judgment was the same as it would have been if this description had been omit- ted. �Also hdd, that the judgment, being a flrm obligation, and the real estate flrm property, though the legal title was in the bankrupts individually, neither the copartners nor other copartnership creditors had any superior equities, as against the judgment creditors, which would, as in case of a judgment against one partner on his individual debt, prevent the attaching of the lien. �Also ?ield, that under the New York law (St, 1877, e. 466) requir- ing that a general assignment in trust for creditors should " be in writing, and duly acknowledged before an oflicer authorized to take the acknowledgment of deeds," the general assignment in this case should have been exeouted and acknowledged by ail the members of the firm, the same as is required in a deed of real estate, and that the assign- ment was void and inoperative to transf er any title or interest. �Sddifurther, that, as the assignee in bankruptcy sold the land and reeeived its proceeds under hia title as assignee in bankruptcy, the assignment having been treated by ail parties in interest as inopera- tive in respect to the land, it will be presumed that he reeeived it as property vesled in the bankrupts when the petition in bankruptcy ����