Page:Harvard Law Review Volume 8.djvu/283

267 VOLUNTARY ASSIGNMENTS AND INSOLVENCY. 267 conveyance ; for we perceive no difference as to the effect on other creditors whether the estate be conveyed directly to the particular creditors, or with their assent to others in trust for them." ^ The court, then, refused to uphold the assignment except as to such creditors as actually were assenting parties. The same prin- ciple applies where the assignee is not himself a creditor, and has in fact given no consideration for the conveyance to him, although a nominal consideration be expressed in the deed. Such a convey- ance, though good between the parties, is not valid as against the creditors.^ It is otherwise where the assignee is himself a creditor, for in that case he acts in two capacities, as creditor and as as- signee : as assignee there is a consideration for the conveyance, because he has an interest; as creditor he can assent to the ar- rangement^ This is true, although he is the only creditor who assents; but the transfer must be not so much in excess of his claim as to furnish a presumption of fraud.* The court will search for fraud in any such conveyance,^ and will allow secret assignments with fraudulent intent to be proved by parol.^ Of course the assignments must not only be pure from fraud, but they must be regular in form, and suitable to accomplish the purposes intended ; ' there must be proper covenants on the part of the assignee as to applying the property, and the assent of a creditor must appear to protect the assigned property from attachment.^ Now what could a creditor do who was not a party to the assign- ment? Where the assignment was invalid for any of the reasons 1 Page 154. 2 Parker v. Kinsman, 8 Mass. 486 (1812). See Bradford v. Tappan, 11 Pick. 76, 78 (1831). 6 Shaw, C. J., thus defines fraud : " But if under a pretence of a conveyance for the benefit of creditors the debtor transfers his property on any secret trust for himself, if it is attended with any of the known badges of fraud not satisfactorily explained or removed, the conveyance is void at law; ... it must appear that the assignment was made upon a valuable and adequate consideration and in good faith to satisfy or secure real existing debts, or to indemnify against actual or subsisting liabilities." Russell v. Woodward, 10 Pick. 408, 412, 413 (1830). 6 Hills V. Eliot, 12 Mass. 26 (1815). ^ Quincy v. Hall, i Pick. 357 (1823); Harris v. Sumner, 2 Pick. 129 (1824). ' If the assignment requires it, the assent must be in writing. Brewer v. Pitkin, rt Pick. 298 (1831); Ward v. Lamson, 6 Pick. 358 (1828). Assent may be shown by claiming the benefit of the assignment. May v. Wannemacher, in Mass. 202 j Pierce V. O'Brien, 129 Mass. 314. It may be verbal. Wiley v. Collins, n Me. 193. 36
 * Harris v. Sumner, 2 Pick. 129 (1824).
 * Hastings v. Baldwin, 17 Mass. 552 (1822).