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Rep. 832); Devl Deeds, § 222; Mooney v. Cooledge, 30 Ark. 640; Warv. Vend. p.,473; Muhr v. Pinover, 67 Md. 480 (10 Atl. Rep. 289); Eigenbrun v. Smith, 98 N. C. 207 (4 S. E. Rep. 122); Goll v. Hubbell, 61 Wis. 293 (20 N. W. Rep. 674; 21 N. W. Rep. 288); Bank v. Peterson, 69 Wis. 561 (35 N. W. Rep. 47); Bates v. Simmons, 62 Wis. 69 (22 N. W. Rep. 335); Smith v. Michell, 12 Mich. 180; Perry v. Vezina, 63 Iowa 25 (18 N. W. Rep. 657); Garnor v. Frederick, 18 Ind. 507; Hartzler v. Tootle, 85 Mo. 23; Brooks v. Nichols, 17 Mich. 38; Rosenthal v. Scott, 41 Mich. 632 (2 N. W. Rep. 909); Rainwater v. Stevens, 15 Mo. App. 544; Bradley v. Bischel, 81 Iowa 80 (46 N. W. Rep. 755); Wait, Fraud. Conv., § 326. Where a firm has made an assignment for the benefit of its creditors the individual members thereof can not claim their statutory exemption out of the partnership property in the absence of a statute expressly authorizing them to do so. In re Spitz, 8 N. M. 622 (45 Pac. Rep. 1122; 34 L. R. A. 604).

Sec. 43.

Preference of creditors. A deed of assignment by an insolvent corporation which gives a preference to its directors to whom debts are owing, over other creditors whose claims are equally meritorious, is void. W. P. Noble Mercantile Co. v. Mt. Pleasant Eq. Co-op. Inst., Utah

(42 Pac. Rep. 869). Where the members of a partnership make a deed of assignment of all the property owned by them either as a partnership or as individuals which gives the partnership creditors an unlawful preference as to the individual property, it is void under S. C. Rev. Stat. 1893, § 2146, irrespective of the intention of the parties, and such invalidity cannot be cured by the assurance of the assignee that he will disregard such preference and distribute the assets according to law, even if supported by the strongest possible guaranty. Middleton v. Taber, 46 S. C. 337 (24 S. E. Rep. 282). A provision in a deed of assignment for paying the fee of the attorney drawing the deed is not such an unlawful preference as will vitiate the assignment, under South Carolina Revised Statutes 1893, § 2147. See opinion for construction of this statute. Haynes v. Hoffman, 46 S. C. 157 (24 S. E. Rep. 103). Minn. Laws 1881, ch. 148; 1895, ch. 66,

construed and applied-sufficiency of deed-preference of creditors. Yanish v. Pioneer Fuel Co., 64 Minn. 175 (66 N. W. Rep. 198). S. Car. Rev. Stat. 1893, § 2147 (Gen. Stat. 1882, 2015), construed and applied-execution of mortgage by insolvent within 90 days of his making an assignment -effect on validity of assignment. Durham Fertilizer Co. v. Hemphill, 45 S. C. 621 (24 S. E. Rep. 85).

Sec. 44. Assignment as a conveyance of real estate in other states. A voluntary assignment, valid in the state or territory where made, which includes real estate situated in another state, if sufficient in form to operate as a conveyance of land in the latter state will be upheld by its courts, on the principle of comity, against non-resident attaching creditors, even though the effect of the assignment is contrary to the policy and laws of the state where it is sought to be enforced; but this rule cannot be invoked as against resident creditors. Williams v. Kemper, Hundley & McDonald Dry Goods Co., 4 Okla. 145 (43 Pac. Rep. 1148). To the same effect, see Hawkins v. Ireland, 64 Minn. 339 (67 N. W. Rep. 73; 58 Am. St. Rep. 534). In the first case cited the court reviews the authorities at length and cites in support of its conclusion, the following: Rogers v. Allen, 3 Ohio, 489; Sortwell v. Jewett, 9 Ohio, 181; Lamb v. Fries, 2 Pa. 83; Palmer v. Mason, 42 Mich. 152; Pemberton v. Klein, 43 N. J. Eq. 98 (10 Atl. Rep. 837); Bentley v. Whittemore, 19 N. J. Eq. 462 (97 Am. Dec. 671), overruling same case in 18 N. J. Eq. 366; Merchants' Bank of Baltimore v. Bank of U. S., 2 La. Ann. 660 ; Eddy v. Winchester, 60 N. H. 63; Green v. Cross, 12 Neb. 117 (10 N. W. Rep. 459); Chafee v. Bank, 71 Me. 514; Gardner v. Bank, 95 Ill. 298; Heyer v. Alexander, 108 Ill. 385.

Sec. 45. Setting aside previous conveyances of insolvent. An assignee cannot maintain an action to set aside a previous conveyance by his insolvent to another, made with an oral understanding with such grantee that the property conveyed was to be sold by him and the proceeds applied ratably to the payment of certain debts of the insolvent, where no fraud appears in the transaction and the creditors interested

in it are willing that the arrangement be carried out. McNeil v. Hanson, 115 Cal. 214 (48 Pac. Rep. 1065). An assignee in insolvency has no standing to maintain an action to set aside an absolute deed, made without consideration, by the insolvent, at a time when he had no creditors, there being no allegation of fraud, nor any upon which to found an express or implied trust. Babcock v. Chase et al., 111 Cal. 351 (43 Pac. Rep. 1105).

Sec. 46. Miscellaneous notes. A deed of assignment for the benefit of creditors is not shown to be invalid on account of the fraudulent omission of property, by proof that the assignor made a written statement more than a year before the execution of the deed to the effect that he owned certain lands not included in the assignment. Parker v. Cleaveland, 37 Fla. 39 (19 So. Rep. 344). An assignee is a trustee of an express trust and may be removed by the court having jurisdiction of the assignment, for mismanagement or waste. Cadwell v. Matthewson, 57 Kan. 258 (45 Pac. Rep. 614). In proceedings by the creditors of an assigning debtor asking the court to administer the trust created by the deed of assignment, the court has no jurisdiction over property not embraced in the assignment and on which no lien is claimed. Spindle v. Fletcher, 93 Va. 186 (24 S. E. Rep. 910). An inchoate right to a mechanic's lien passes by an assignment for creditors. Bristol Iron & S. Co. v. Thomas, 93 Va. 396 (25 S. E. Rep. 110). As a general rule an assignment which is void in part is entirely void, and where it is fraudulent in fact it is void in toto. W. P. Noble Mercantile Co. v. Mt. Pleasant Co-op. Inst., Utah (42 Pac. Rep. 869). Creditors have no greater rights against an assignee than they had against the original debtor. Potter v. Gilbert, 177 Pa. St. 159 (35 Atl. Rep. 597; 35 L. R. A. 580).

utes.

Sec. 47.

Miscellaneous notes-Construction of statThe provisions of Pa. Act July 12, 1842, whereby a debtor may escape imprisonment for debt by executing a deed of assignment for the benefit of his creditors is applicable in favor of minors and other persons under legal disabilities. Williams v. Ivory, 173 Pa. 536 (34 Atl. Rep. 291). A decree

directing that a purchaser at an assignee's sale be placed in possession, under Pa. Act, Feb. 17, 1876, does not adjudicate adverse claims of title. Lutz v. Kegerries, 176 Pa. St. 164 (34 Atl. Rep. 1021). Pa. Act Feb. 17, 1876, applied-sale of real estate subject to judgment liens-power of court. In re White, 178 Pa. 280 (35 Atl. Rep. 985). Particular trust deed given to secure creditors construed. Tenn. Act, 1881, ch. 121, applied. Reed Fertilizer Co. v. Thomas, 97 Tenn. 478 (37 S. W. Rep. 220).

BONA FIDE PURCHASER.

EPITOME OF CASES.

Sec. 48. As to what constitutes - General principles. In order to constitute a bona fide purchaser, he must be a purchaser in good faith without notice and for a valuable consideration, Young v. Schofield, 132 Mo. 650 (34 S. W. Rep 497); the purchase money must be actually paid, Mackey v. Bowels, 98 Ga. 730 (25 S. E. Rep. 834); American Exch. Nat. Bank v. Fockler, 49 Neb. 713 (68 N. W. Rep. 1039); and if he pays part only before the notice, he will be protected only to the extent of his actual payment, Brinton v. Scull, N. J. Eq. (35 Atl. Rep. 843). One who purchases land with knowledge that the deed under which his grantor holds was intended only as a mortgage is not an innocent purchaser, Bristow v. Rosenberg, 45 S. C. 614 (23 S. E. Rep. 957); nor is a purchaser of a tax certificate or of a tax title, Brown v. Cohn, 95 Wis. 90 (69 N. W. Rep. 71); nor is one who has acquired his interest upon a usurious consideration, Hart v. Adler, 109 Ala. 467 (19 So. Rep. 894). A judg ment creditor is not a bona fide purchaser, Phillips v. Roquemore, 96 Ga. 719 (23 S. E. Rep. 855); Smith v. Savage, 3 Kan. App. 556 (43 Pac. Rep. 847); nor the mortgagees in a mortgage taken to secure a pre-existing debt, Reeves v. Evans, N. J. Eq. (34 Atl. Rep. 477);

unless there be an extension of time, Alston v. Marshall, 112 Ala. 638 (20 So. Rep. 850). Where a link in the chain of title consists of a decree of a competent court made upon a mistake of fact, one who subsequently purchases the land without notice of such mistake is a bona fide purchaser. Herbin v. Wagoner, 118 N. C., 656 (24 S. E. Rep. 490).

Sec. 49. As to what constitutes-Particular cases. One who purchases mortgaged premises with knowledge that the mortgagee has taken a conveyance thereof in which he has assumed and agreed to pay the mortgage debt which is not matured and has been assigned to another, is not a bona fide purchaser as against the holder of said debt although his assignment is unrecorded and the mortgagee has entered record satisfaction of the mortgage. Mathews v. Jones, 47 Neb. 616 (66 N. W. Rep. 622). A mortgagee in a mortgage given for a valuable consideration is entitled to all the rights of a bona fide purchaser. Hill v. Yarbrough, 62 Ark. 320 (35 S. W. Rep. 433. Within the terms of the Ohio statute, 1 Swan & C. 458, a purchaser of land who has paid a valuable consideration therefor is a bona fide purchaser. Varwig v. Cleveland, C. C. & St. L. R. Co., 54 O. St. 455 (44 N. E. Rep. 92). Where a party purchases real estate that is subject to a trust, he can not be considered a bona fide purchaser without notice, if he has actual notice of such trust. "Actual notice," as used in such case, does not mean actual notice of the fact, but notice of facts which would or ought to put him upon inquiry in reference to it. Bradley v. Merrill, 88 Me. 319 (34 Atl. Rep. 160). For cases which depend upon particular facts and which illustrate what constitutes a bona fide purchaser, see Aldrich v. Adams, 166 Mass. 141 (43 N. E. Rep. 1029); Moore v. Recek, 163 Ill. 17 (44 N. E. Rep. 868); Rivers v. Rivers, 38 Fla. 65 (20 So. Rep. 807); Clerf v. Montgomery, 15 Wash. St. 483 (46 Pac. Rep. 1028).

Sec. 50. Purging equities-Knowledge to put one on inquiry. An innocent purchaser who takes title from one who is affected with notice acquires a good title as against secret equities of which he had no knowledge. Lindell Real Estate Co. v. Lindell, 133 Mo. 386 (33 S. W. Rep. 466).

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