MARYLAND COURT OF APPEALS. SOUTH BALTIMORE CO., Appt., V. Christian MUHLBACH. 4. A tenant is not estopped from setting up, against a corporation, a verbal lease made by an agent and officer of the corporation, since deceased, by the facts that a prior written lease had been executed to the tenant from the corporation by such agent, and been deposited among the muniments of the company, and that the other officers of the corporation knew only of such written lease and had, until after suit brought against it on the verbal lease, dealt with the tenant according to the written lease, without objection from him. 6. If an injury to land is committed under a contract with the occupant whereby he was to receive compensation, his remedy is on the contract, and not by an action of trespass. (November 23, 1888.) APPEAL by defendant, from a judgment of the Circuit Court for Baltimore County in NOTE.-Evidence Acts; surviving party to contract cannot testify. The chief object and purpose of the Evidence Act was to remove the incompetency of witnesses, not to impose additional restrictions. Downes v. Maryland & D. R. Co. 37 Md. 104; Odd Fellows J. S. Asso. v. Merklin, 3 Cent. Rep. 893, 65 Md. 579; Trahern v. Colburn, 63 Md. 105; Horner v. Frazier, 3 Cent. Rep. 700, 65 Md. 1. Only such exceptions were made as seemed necessary to preserve mutuality and prevent undue advantage being given to a survivor on a contract where the other contractor was dead. Downes v. Maryland & D. R. Co. 37 Md. 104; Johnson v. Heald, 33 Md. 352; Swartz v. Chickering, 58 Md. 295; Horner v. Frazier, supra. It is only the surviving party to a contract who cannot testify as to what took place between deceased and himself in reference to the said contract. Chapman v. Smoot, 3 Cent. Rep. 843, 66 Md. 8. Under the statute, the test of competency is the contract or cause of action in issue and on trial, and not the fact to which the party is called to testify. Robertson v. Mowell, 6 Cent. Rep. 683, 66 Md. 530; Smith v. Wood, 31 Md. 297; Wright v. Gilbert, 51 Md. 157; Leiter v. Grimes, 35 Md. 434. A grantor in a deed, and lessee in a lease back of the same property, who has devested himself of all interest in the property by assignment of the lease, is a competent witness for his assignee against the representatives of the deceased grantee, although he was party to the original contract with the deceased. Odd Fellows J. S. Asso. v. Merklin, 3 Cent. Rep. 893, 65 Md. 579; Glenn v. Von Kapff, 2 Gill & J. 132. Contract with agent is contract with principal. When the agent is known to be an agent, a contract knowingly made is made with the principal. Moir v. Hopkins, 16 Ill. 313; Exum v. Brister, 35 Miss. | favor of the plaintiff in an action of trespass quare clausum fregit. Reversed. The facts of the case are stated in the opin ion. The prayers for instructions, referred to in the opinion, were as follows: Plaintiff's Prayer. The plaintiff prays the court to instruct the that the plaintiff was in possession of the land jury, that if they shall find from the evidence spoken of in evidence, as tenant to the defendant, and, while so in possession, the defendant authorized the witness, Hoffman, to enter upon said property and dig upon the same, and Hoffman did so through his employees, and that the defendant subsequently rented a portion of the property so rented and occupied by the plaintiff to the witness, Hoffman, and said Hoffman entered upon and took possession of the portion of said property so rented to him by the defendant,-then if the jury shall find in favor of the plaintiff they may allow such dam ages as they shall find were the natural result of such entry upon plaintiff's premises; and the jury are at liberty to consider all the circumstances under which such entry was made upon said premises, and the acts done by said Hoffman or his employees after entering thereon. (Granted.) Defendant's Prayers. I. The defendant prays the court to instruct the jury, that although the jury find that after the expiration of the written lease offered in evidence, if they find such lease and its expiration, said George L. Harrison, mentioned in the evidence, purported, as secretary of the de fendant, to agree verbally with the plaintiff for a new lease of said premises mentioned in 391. For acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business, and of their employment, the corporation is responsible as an individual is responsible under similar circumstances. Philadelphia, W. & B. R. Co. v. Quigley, 62 U. S. 21 How. 202 (16 L. ed. 73); Chicago & N. W. R. Co. v. James, 22 Wis. 199. A corporation acting through agents and officers who are admitted to testify in cases where it is a party, cannot be said to be under legal disability, and the opposing party in a suit can be examined as a witness. North Hudson County R. Co. v. May, 4 Cent. Rep. 81, 48 N. J. L. 401. Statute of Frauds; contracts for work and labor not within. A contract which is merely a contract for work and labor is not within the Statute of Frauds, it not being a contract for the sale of goods, wares and merchandise. Allen v. Jarvis, 20 Conn. 38; Hight v. Ripley, 19 Me. 137; Mixer v. Howarth, 21 Pick. 205; Spencer v. Cone, 1 Met. 283; Phipps v. McFarlane, 3 Minn. 109; O'Neil v. New York & S. P. Mining Co. 3 Nev. 141; Pitkin v. Noyes, 48 N. H. 294; Bronson v. Wiman, 10 Barb. 406; Donovan v. Willson, 26 Barb. 138; Parker v. Schenck, 28 Barb. 38; Mead v. Case, 33 Barb. 202; Sewall v. Fitch, 8 Cow. 215; Parsons v. Loucks, 4 Robt. 216; Robertson v. Vaughn, 5 Sandf. 1; Turner v. Mason (Mich.) 9 West. Rep. 349. Lessee; estoppel not a bar beyond the term. An estoppel will not bar the lessee beyond the duration of the interest derived by him under the lease; by the determination of the term, the estoppel is also determined. 4 Coke, 54 a: James v. Landon, Cro. Eliz. 36. The estate begins by, and terminates with the lease. Jackson v. Ayers, 14 Johns. 224; Brudneli v. Roberts, 2 Wils. 143; Blake v. Foster, 8 T. R. 487. the declaration, such agreement for such lease | the plaintiff's close, brought on the 15th of was void under the fourth section of the Stat- April, 1887. The plaintiff was in possession ute of Frauds, and the plaintiff continued to of the land as tenant of the defendant, and left hold over under such terms of the written lease the premises, upon notice to quit, on the last as were applicable to his situation as tenant so day of December, 1887. The case was tried holding over. (Rejected.) on the general issue; plea of not guilty. II. If the jury find that said George L. Harrison was before and at the date of the written lease offered in evidence, and continually thereafter until his death, a director of the defendant, and was secretary only of defendant, and never was its president; and if they further find the written lease offered in evidence, made and signed by the said Harrison and the plaintiff, and that said Harrison is now dead-then the plaintiff cannot testify, on his own offer, to any subsequent agreement for a lease made verbally between him and said Harrison, deceased, in his lifetime. (Rejected.) | III. If the jury find the facts stated in the preceding prayer, and in addition that said written lease was deposited by said Harrison amongst the muniments of the defendant, and that there is no proof that the president and directors of said defendant ever knew or heard of any other lease to said Muhlbach, except said written lease; and further find that said president and directors knew of said written lease, and that the witnesses, Keener and Whitridge, as officers of defendant, dealt with said Muhlbach as tenant of said company holding over, under and according to said written lease, without objection or protest from him, and that he never pretended to them, or either of them, that he was holding according to a subsequent verbal agreement to lease until after the commencement of this suit, then the jury should find that the plaintiff is not entitled to set up in this case said alleged verbal agreement for lease. (Rejected.) IV. That if the jury find that the plaintiff was tenant to defendant of the premises mentioned in the declaration, and that defendant acquainted said plaintiff with its desire to lease parcel of said premises to the witness Hoffman, and that the said witness and plaintiff and the president of defendant met together in the month of February, 1887, and that the presi dent of defendant promised plaintiff to pay him whatever was in reason, if he, plaintiff, would consent to a lease being made to said Hoffman of a parcel of said premises which had been previously pointed out to plaintiff by said president of defendant as the parcel thereof so proposed to be leased to said Hoffman, and that plaintiff thereupon agreed that such lease of said parcel should be so made to said Hoffman, and afterwards pointed out to said Hoffman the bounds, or some of the bounds, of said parcel so to be leased, and that afterwards defendant made a lease thereof to said Hoffman, and said Hoffman entered and was possessed, then the plaintiff cannot recover in this action, although he and the president of the defendant afterwards disagreed, or failed to agree, as to the amounts of such compensation to be paid by defendant to plaintiff for the land so taken by defendant and leased to said Hoffman. (Rejected.) Alvey, Ch. J., delivered the opinion of the court: This was an action of trespass for breaking It appears that in 1871 the plaintiff leased in writing, of the defendant, the premises in question, for one year, the plaintiff agreeing to vacate the premises at any time upon receiving thirty days notice. This lease was made, on the part of the defendant, by George L. Harrison, at the time secretary and agent of the defendant, but who has since died. The plaintiff testified in his own behalf, and proved, that at the end of the year for which the written lease was made, he was going to quit because the buildings on the place did not suit him, and the defendant refused to put up others; but that Harrison came out to the place, and made a verbal agreement with him, the plaintiff, to continue on the place as a yearly tenant, with the right to the notice of a yearly tenant; and that he, the plaintiff, should put up what buildings he wanted, and when he left the buildings should be paid for at what they were worth at the time, and not what they cost to put them up, and that it was under this agreement that he remained in possession of the property until the last of December, 1887, when he left under a six months' notice from the defendant. Harrison was a director in the defendant corporation, as well as secretary and agent; and because he was dead, an objection was taken by the defendant, in the first bill of exception, and also by prayer to the court, to the right and competency of the plaintiff to testify as to the verbal agreement made with Harrison in regard to the renting of the land. But clearly the objection is not tenable. The statute, as given in the Code of 1888, art. 35, § 1, declares that, "No person offered as a witness shall hereafter be excluded by reason of incapacity, from crime or interest, from giving evidence, and the parties litigant, and all persons in whose behalf any suit, action on other proceeding may be brought or defended, themselves, and their wives and husbands, shall be competent and compellable to give ev; lence in the same manner as other witnesses, except as hereinafter excepted." By section 2, which declares the exceptions, it is provided that when an original party to a contract or cause of action is dead, or shown to be a lunatic or insane, or when an executor or administrator is a party to the suit, action, or other proceeding, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his coplaintiff or codefendant otherwise than now by law allowed, unless a nominal party merely, etc. It is very clear, upon the decisions of this court, that Harrison, though a director and an agent of the defendant, by whom the contract was made, was not an original party to such contract, in any legal or technical sense. The parties to the contract, assuming it to have been made as testified by the plaintiff, were the defendant corporation and the plaintiff; and though Harrison has since died, his death in no manner rendered the plaintiff incompetent 1888. SOUTH BALTIMORE Co. V. MUHLBACH. as a witness for himself. This would seem to be conclusively settled by the cases of City Bank of Baltimore v. Bateman, 7 Har. & J. 104; Downes v. Md. & D. R. Co. 37 Md. 100; and Spencer v. Trafford, 42 Md. 17. The rule of exclusion would, of course, have to be mutual in its operation, if the objection of the defendant were maintainable; and as nearly all contracts by corporations or associations are made by agents, if the death of the other contracting party rendered the agent in competent as a witness, a great many persons would be rendered incompetent who were competent, or who could have been made competent, before the passage of the Evidence Acts. Such a result would contravene both the letter and spirit of the Acts, which were intended to extend, and in no manner to restrict, the competency of persons to testify. And the plaintiff being a competent witness, the evidence given by him, and excepted to by the defendant, was clearly admissible. The second exception taken by the defendant was to the admissibility of certain testimony offered to be given by the wife of the plaintiff, for the purpose of proving the verbal agreement made with Harrison for the renting of the land by the plaintiff. There was certainly evidence tending to show that Harrison was the agent for the renting of the land. And the sole ground of objection to the evidence offered, as stated in the exception, appears to be that, at the time of the supposed verbal agreement, Harrison was a director of the defendant corporation, and had died before the trial, and therefore "his verbal contract, agreement or declarations could not be given in evidence against the defendant." such terms of the prior written lease as were The contention of the defendant is that the And so treat If the buildings contemplated by the verbal contract, to be put up by and for the use of the plaintiff, while tenant, and to be paid for by the defendant, at the end of the tenancy, at their then value, be regarded as tenant fixtures, then it would simply be a contract for the sale of fixtures erected by the tenant during his tenancy, which he agreed to surrender to the landlord at a valuation. ing it the law is well settled that agreements for the sale or surrender of fixtures are not within the operation of the Statute of Frauds, inasmuch as they are not goods and chattels within the meaning of the seventeenth section of the statute; nor do they constitute, although annexed to the freehold, an interest in land. Hallen v. Runder, 1 Cromp. M. & R. 266, 275; Lee v. Gaskell, L. R. 1 Q. B. Div. 700; note e to Greene v. Cole, 3 Wms. Saund. 259, a, b; Browne, Statute of Frauds, 3d ed. §§ 233, 234, p. 239. If it be true, as proved by the plaintiff, that Harrison was the agent of the defendant for the management and renting of its lands, it is But treating the contract as one for improvedifficult to understand why the evidence was not admissible. It was certainly competent to ments to be erected on the land of the defendant, make a contract of renting for a year by parol; it appears to be settled that such improvements and if Harrison was the agent for renting and are not to be regarded as land, because annexed managing the land, a contract made by him thereto, as between the contracting parties. was equally binding as if made by the defend- Such a contract is properly a contract for work We and labor and materials furnished, and thereant by an act of its board of directors. fore not within the provisions of the Statute of perceive no error in admitting the evidence. The plaintiff's prayer for instruction, which Frauds. Pinner v. Arnold, 2 Cromp. M. & R. was granted by the court, was well calculated 613. to mislead the jury, and should therefore have been rejected. It was founded upon the testimony of the plaintiff himself alone, and entirely ignored all the other evidence in the case. It put to the jury to find only a part of the facts testified to by the plaintiff himself, and it utterly failed to deduce any legal conclusion therefrom, but left the jury to speculate as to the legal effect of the facts stated in the prayer. These facts thus enumerated may have all been found by the jury to be true, and yet, in view of all the other evidence in the case, the plaintiff may not have been entitled to recover any damages, or not entitled to a verdict at all. It was error, therefore, to grant such a prayer. The first prayer on the part of the defendant proceeds upon the theory that the verbal agreement of renting, made by Harrison with the plaintiff, was void under the fourth section of the Statute of Frauds, 29 Car. II. chap. 3, and that the plaintiff continued to hold over under In the case of Frear v. Hardenbergh, 5 Johns. 272, *where a verbal promise was made by the defendant to the plaintiff to pay for the erection of certain buildings upon the land of the former, while in possession of the latter, it was held by the Supreme Court of New York that such contract was binding, and not within the provisions of the Statute of Frauds. In that case the court said: "Was it ever supposed that a parol contract to pay for work to be done on land, or for what had been done, if at the instance and request of the promisor, was a void undertaking under the statute? The contract in such case docs not go to take from the promisor the land, or any interest in or concerning it." The same principle was asserted in the subsequent case of Benedict v. Peebee, 11 Johns. 145, and also in Scoggin v. Slater, 22 Ala. 687. See also Browne, Fr. § 233. *See editorial note, Lawyers' edition. [Rep.] The third prayer of defendant was intended | clude the right of the defendant from availing to present a question of estoppel, whereby the itself of the defense, as not being within the plaintiff should be precluded from setting up issue made by the pleadings upon which the or relying upon the verbal contract of renting case was tried; and it is the settled practice in made with Harrison. But the facts stated in this court that where the court below either the prayer are wholly insufficient to constitute grants or rejects a prayer, asking an instrucan estoppel; and the court was quite right in tion to the jury that if they believe certain rejecting the prayer. facts the plaintiff is or is not entitled to recover, if there be no reference to the pleadings, this court will not assume that the court below inspected the pleadings, and adjudged their sufficiency or insufficiency to sustain the prayer. The prayer, to raise such a question, under the Act of 1825, chap. 117, should be framed with a direct reference to the pleadings in the cause. Stockton v. Frey, 4 Gill, 406, 421; Owings v. Jones, 9 Md. 116. But in regard to the defendant's fourth prayer, we think the court below fell into error in rejecting it. If it be true, as set forth in this prayer, that the acts alleged as the trespass were done by the permission of the plaintiff, and under arrangement with the plaintiff, whereby reasonable compensation was to be paid by the defendant for any injury done the plaintiff, by the opening and making a brick yard upon the premises, by the authority of the defendant, such facts, if found to exist, would furnish a complete answer to the action. The plaintiff, if he sustained injury by what was done on the premises, by the authority of the defendant, would have to seek his remedy on the contract, and not by an action of trespass quare clausum fregit. It is true there was no plea of leave and license interposed by the defendant, as there ought to have been, to entitle the defendant to avail itself of the defense furnished by the facts stated in the prayer. Add. Torts, 295, 296; 2 Greenl. Ev. § 625, 627. But the prayer made no reference to the pleadings, nor was there any prayer on the part of the plaintiff to pre It appears that there was a paper signed by counsel and filed in the cause (but at what particular stage of the trial does not appear), entitled "Special Exceptions:" and one of the exceptions stated is that the fourth prayer of the defendant was "not proper, under the 'pleadings in the cause." But this paper was not made part of any bill of exception taken in the course of the trial, and signed by the judge; nor does the 4th Rule, regulating appeals, apply to such case, or authorize the taking of any such special exception to a prayer, that "it is not proper, under the pleadings in the cause." For the reasons stated, the judgment of the Court below must be reversed, and a new trial awarded. MASSACHUSETTS SUPREME JUDICIAL COURT. Frank A. MILLIKEN et al., Assignees, v. Henry C. HATHAWAY. is liable to the assignee in insolvency for the value thereof. ON an (November 28, 1888.) an auditor's report stipulated to be taken Judgment 1. A chattel mortgage which is void under the Insolvent Laws as against the assignee and creditors of the mortgagor on his sub-for plaintiff's. sequently being declared an insolvent, but which is valid as between the parties thereto, will not protect the mortgaged property from being taken possession of by the messenger in insolvency. 2. An auctioneer who, as agent of the mort-ing and the stock of goods, wares, fixtures and gagee in a chattel mortgage, void under the Insolvent Laws, sells the mortgaged property, under a power in the mortgage, after notice of the issu ance of a warrant in insolvency against the mortgagor, and demand of possesison by the messenger, is guilty of a conversion of the property, and Action of tort in which the plaintiffs, as assignees in insolvency of William H. Walker, an insolvent debtor in insolvency, seek to recover of the defendant one wooden frame build merchandise therein, on the ground that the defendant on December 31, 1885, converted the same to his own use,-said property at that time being by operation of law the property of the plaintiffs. NOTE.-Conveyances by insolvent void as to as- In an action to recover property transferred by signees and creditors. Although an intent to give an insolvent debtor in fraud of his creditors, where a preference may be inferred from the fact of do- plaintiff proves that at the time of the transfer the ing so, with its attendant circumstances, yet there debtor was insolvent or in contemplation of insolv. must be proof of an actual intent to prefer. The ency; that the transfer was made with a view to inference which a jury may properly draw, that a give a preference, and defendants had reasonable person intends the natural and probable conse- ground to believe that the debtor was then insolvquences of his act, is only one element of proof to ent,-it was sufficient to authorize a finding that establish the fact of an actual intent. This intent the transfer was in fraud of the insolvent laws. is essential, and must be found as a fact. Rice v. Forbes v. Howe, 102 Mass. 427; Toof v. Martin, 80 U. Grafton Mills, 117 Mass. 228; Parsons v. Topliff, 119 S. 13 Wall. 40-51 (20 L. ed. 481-484); Abbott v. ShepMass. 245; Forbes v. Howe, 102 Mass. 427, 437; Beals ard, 2 New Eng. Rep. 366, 142 Mass. 17. An assignv. Clark, 13 Gray, 18; Denny v. Dana, 2 Cush. 160, ment of property, executed in another State, 172; Sartwell v. North, 4 New Eng. Rep. 51, 144 Mass. by a debtor domiciled there, for the benefit of 188. If facts are known to a creditor which give him his creditors, which provides that certain credreasonable cause to believe his debtor to be insolv-itors shall be paid in full before the others are paid ent, and he also knows that the debtor knows the anything, and which is assented to by creditors same facts, he has reasonable cause to believe that holding claims exceeding in amount the value of the debtor believes himself to be insolvent, and the property assigned, if valid by the law of that that a payment of the debt by him is made in fraud State, will be upheld in this Commonwealth, as of the laws relating to insolvency. Cozzens v. Holt, against an attaching creditor of the assignor domi136 Mass. 237. ciled here. Train v. Kendall, 137 Mass. 366. See also 11 L. R. A. 424; 14 L. R. A. 198. The material facts are stated in the opinion. | which amounted to a conversion, and he is li- This mortgage was fraudulent and void, being given in contravention of the Insolvency Laws of this Commonwealth. Mass. Pub. Stat. chap. 157, §§ 96, 98. See Denny v. Dana, 2 Cush. 160; Nary v. Merrill, 8 Allen, 451; Buffum v. Jones, 3 New Eng. Rep. 718, 144 Mass. 29; Toof v. Martin, 80 U. S. 13 Wall. 40 (20 L. ed. 481); Wager v. Hall, 83 U. S. 16 Wall. 584 (21 L. ed. 504); Merchants Nat. Bank v. Cook, 95 U. S. 342 (24 L. ed. 412). The avoidance of the conveyance relates back to its inception, and makes it void ab initio. Butler v. Hildreth, 5 Met. 49. The defendant, with actual notice of the insolvency proceeding, and after demand upon him and refusal by him to deliver the property to the messenger, exercised acts of dominion over the same, and sold it. The mortgage being void, he is liable for conversion. Coles v. Clark, 3 Cush. 399; Gilmore v. Newton, 9 Allen, 171; Metcalf v. McLaughlin, 122 Mass. 84. Mr. H. M. Knowlton, for defendant: Although upon the facts the mortgage might have been annulled by the assignee when chos en, no steps had been taken to avoid it; and non constat that any ever would be. At the time of the sale it was valid and subsisting. Briggs v. Parkman, 2 Met. 258-267; Potter v. Belden, 105 Mass. 11; Snow v. Lang, 2 Allen, 18. The messenger had no power either to prevent the sale or take possession of the property; and his notice or prohibition could not affect the rights the parties already had under contract or by law. Cutter v. Gay, 8 Allen, 134; Chase v. Denny, 130 Mass. 566. Morton, Ch. J., delivered the opinion of the court: The only question presented in this case is as to the liability of the defendant for the value of the wooden frame building sold by him. This building was personal property belonging to one Walker. On December 3, 1885, be mortgaged it to one Maggie M. Riley to secure a pre-existing debt payable on demand-the mortgage containing a power to sell upon giving ten days' notice. He was insolvent, and the mortgage was made with a view to give a preference to said Riley, who knew his purpose in giving it. On December 21, 1885, said Riley gave to said Walker notice of her intention to foreclose said mortgage by a sale at public auction on December 31, 1885, at 10 o'clock A. M. Prior to December 31, 1885, said Walker had been adjudged an insolvent debtor on his own petition, and a warrant had been issued, the first publication of the issuing of the warrant being in a newspaper published on said December 31. The defendant was an auctioneer employed by said Riley. Before the hour appointed for the sale he had notice of the insolvency, and the messenger demanded of him the property; but he refused to give it up, and proceeded to sell it at auction. If he had no right under these circumstances to sell the property, his sale of it was an exercise of dominion over it The statute provides that the judge of insolvency shall issue a warrant to the sheriff or one of his deputies, directing him forthwith, as messenger, to take possession of all the estate, real and personal, of the debtor, except such as may be by law exempt from attachment, and to keep the same until the appointment of an assignee; and it makes it the duty of the messenger to "demand and receive from the debtor and other persons all the estate in his or their possession respectively, which is herein ordered to be assigned." Pub. Stat. chap. 157, SS 17, 18. It is also made the duty of the debtor, not only to deliver to the messenger all the estate in his possession or power, but also to "disclose the situation of such parts thereof as are in the possession of any other person, so as to enable the messenger to demand and receive the same." Pub. Stat. chap. 157, § 19. The messenger is the temporary custodian of all the estate of the debtor, and the intention of the statute is that he shall demand and receive all the property of the debtor which be longs to his estate and which ought to go to the assignee for the benefit of the creditors. In the case at bar it is conceded that the mortgage from the insolvent debtor to Riley was fraudulent under our insolvent laws. Pub. Stat. chap. 157, § 96.* The statute declares that such a conveyance "shall be void.” By this is meant that it shall be void as to the assignee and the creditors. It is true that it is not void in the sense that it is an absolute nullity, for undoubtedly it is valid as between the parties to it. But as to the assignee it is void, and has no force unless he affirms it. Butler v. Hildreth, 5 Met. 49; Snow v. Lang, 2 Allen, 18. There was never a time when the mortgage in question in this case had any validity as against the assignee or creditors of the debtor. We do not think the mortgagee can set up that the messenger had no right to demand and receive the mortgaged property because he held it under a valid mortgage. The words of the statute defining the powers and duties of a messenger are broad enough to cover this case. Upon receiving the warrant, he found personal property, which belonged to the debtor's es tate and should go to the assignee for the use of the creditors, which was about to be sold under a fraudulent mortgage, and thus *This section is as follows: contemplation of insolvency, within six months "Sec. 96. If a person, being insolvent or in before the filing of the petition by or against him, with a view to give a preference to a creditor or person who has a claim against him, or is under any liability for him, procures any part of his prop erty to be attached, sequestered or seized on execu tion, or makes any payment, pledge, assignment, transfer or conveyance of any part of his property, either directly or indirectly,absolutely or conditionally, the person receiving such payment, pledge, assignment, transter or conveyance or to be benefited thereby, having reasonable cause to believe such person is insolvent or in contemplation of insolvency, and that such payment, pledge, assignment or conveyance is made in fraud of the laws relating to insolvency, the same shall be void; and of it from the person so receiving it or so to ba the assignees may recover the property or the value benefited." [Rep.} |