Page:Federal Reporter, 1st Series, Volume 5.djvu/367

 IN eE LÀWEENCE. 855 �creditors. Wells v. Mareh, 30 N. T. 344; Gates v. Andrews, 37 N. Y. 659; Hayes y.Heyer, 8 Sandf., S. G. 297; Haggerty V. Granger, 15 How. Pr. 247; Cook v. Kelly, 14 Abb. Pr. 466. �Whatever might be the effect of this general assignment, however, there is another ground on whieh the assignee can- not avail himself of it tô defeat these petitioners. It appears by the statement of facts that the land has been sold by the assignee in bankruptcy under the order of this court, and he holds in his possession the proceeds. It would seem, there- fore, clear that, as to this real estate at least, the assignment ■was inoperative, and never sought to be enforced by the par- ties in interest. It does not appear that the assignee in bank- ruptcy has recovered it in a suit in equity to set the assign- ment aside, or that his elaim to it, notwithstanding the assignment, has ever been questioned or resisted. Sueh facts, if they existed, could bave been shown by the assignee, and they cannot be presumed in the absence of evidence. The assignee, therefore, stands in the position of having received this property, by virtue of his right as assignee in bankruptcy, as property vested in the bankrupts upon the filing of the creditors' petition. He has received ail the benefits of such title, and of course he took it subject to its burdens, among •which is this lien then existing. I think, under these circum- stances, the assignee is estopped to set up this general assign- ment to defeat the petitioners' lien. �The sureties of the judgment debtors, who have paid part of the debt, are entitled to the benefit of the lien which the petitioner Merrifield had at the time they made the payment to him. �An order will be entered directing the assignee to pay the claim of the petitioners out of the moneys in his hands, with interest and costs. ����