Cropsey v. McKinney.

Pomroy, and was fraudulently induced to make the assignment by Banks and Pomroy, setting forth the assignment; that Banks and Pomroy took possession and sold a part of the goods at retail and then closed the store, and were about sacrificing the balance, so that the plaintiff would lose his debt. The complaint prays for a judgment for the debt, and for an injunction and receiver. The answer of the defendants Banks and Pomroy to this complaint, denies that the plaintiff sold or delivered the goods to Bruce McKinney, but alleges that they were sold to Mary B. McKinney upon her sole credit, as part of her stock in trade, and that she carried on the business in her own name and on her own credit, and denies that Bruce McKinney was indebted to the plaintiff as claimed in the complaint. The answer also denies that the said Mary was the wife of Bruce McKinney, and alleges that if the marriage relation ever existed between them, it ceased to exist in 1844, and had been renounced since then, and that Bruce had no interest in the property; that in 1825 Mary married Gilbert McCullom, and that McCullom was living at the time of her marriage with Bruce McKinney, and that her marriage with Bruce was void. The answer insists upon the title of the defendants under the assignment of Mary B. McKinney, denying all fraudulent inducements, and insists that the plaintiff cannot maintain the action, because not a creditor by judgment or decree of the said Bruce or Mary.

After the assignment by Bruce McKinney to James Cropsey, Stephen A. Griffin and Henry C. Glinsmann, the plaintiffs in the other two actions, as hereafter stated, the defendants Banks and Pomroy put in a supplemental answer to the complaint in this action by Cropsey alone, insisting upon such assignment to Cropsey and others, and the acceptance of it by them, and their claim of title under it being inconsistent with this action by Cropsey, and insisting that his complaint should be dismissed.

Some two or three weeks after the assignment by Mary B. McKinney to Banks and Pomroy, an assignment for the benefit

Cropsey v. McKinney.

of creditors was prepared in New York and sent to Bruce McKinney at Liverpool, and was executed by him there, on the 15th day of September, 1854, probably with the knowledge and approbation of Mary B. McKinney, who had become dissatisfied with the claim and conduct of Banks and Pomroy under her assignment.

Bruce McKinney, by his assignment, after reciting that Mary B. McKinney his wife had, by and with his consent, been engaged in the business in New York; and had taken leases of stores and houses for that and other purposes; and that pecuniary embarrassments had resulted from the business; and that he could not meet all the debts and liabilities as they became due and payable, assigns to James Cropsey, Stephen A. Griffin and Henry C. Glinsmann, all the goods and stock in trade then or late in the store No. 228 Hudson street or in No. 707 Broadway in the city of New York, whether purchased in his name or in the name of his wife, or whether then in her possession or not; and all the leases, terms for years and chattels real, whether taken and held in his or his wife's name; and all property, claims, demands, assets and effects, belonging to the said Bruce or in which he had any interest, to be disposed of by his said assignees, and the proceeds applied ratably towards the payment of all the debts and legal claims against, and liabilities of, the said Bruce, whether incurred by his said wife in or about the business aforesaid or otherwise; except the indebtedness of the said Bruce (in and about the business carried on by his wife or otherwise) to George Johnson or George Johnson & Co., to Phelps & Kingman, and to Mellen, Banks & Pomroy, of the city of New York; who are by the assignment constituted the second class of creditors.

Subsequently actions No. 2 and No. 3 were brought by the assignees of Bruce McKinney against Banks & Pomroy. No. 2 is a replevin suit, charging that the defendants became possessed of and wrongfully obtained the goods and chattels specified, which the defendants claim under the assignment of Mary B. McKinney, of the value of $18,000. The answer

Cropsey. McKinney.

denies the plaintiffs' title and ownership of the property, or that the defendants wrongfully became possessed of or detain the goods and chattels, but admits that as assignees of Mary B. McKinney the defendants took possession of goods, wares, &c., and before the commencement of the action sold and delivered a large amount thereof, and justify such taking, possession and sale, under the assignment of Mary B. McKinney.

The complaint in action No. 3, by the same plaintiffs against the same defendants, sets forth the assignment of Bruce McKinney to the plaintiffs; his marriage with Mary B. McKinney, July 21, 1842; his right to the property, trade and business conducted in the name of Mary B. McKinney at 228 Hudson street and 707 Broadway, and the leases thereof, and the improvements thereon, assigned by Mary B. McKinney to the defendants, (which assignment is alleged to be void,) and demands judgment for the possession of the premises and an assignment of the lease of 707 Broadway, and for an account of all the goods, leases and effects sold and disposed of by the defendants, and for the payment of the amounts and value to the plaintiffs. The answer reiterates substantially the matters contained in answers Nos. 1 and 2.

The three actions were by an order of the court referred to John S. Patterson, Esq. as sole referee, on the 11th of Dec. 1856, to take the testimony in them, which might be offered by either party, and report the same to the court, subject to all legal objections at the trial. By stipulation between the parties, it was agreed that the question of the value of the property taken by the defendants, and their receipts and payments, should be waived until the court should determine whether the defendants have the legal title thereto. I deem this to be a sufficient statement of the facts, to show the questions now to be disposed of in these cases.

As to the first action, by Cropsey against Banks and Pomroy, Bruce and Mary B. McKinney, it is clear that being a mere creditor at large, without any judgment against either Bruce or Mary B. McKinney, he is not entitled to any of the equita

Cropsey v. McKinney.

ble relief asked for by him in that action. (Reubens v. Joel, 3 Kernan, 488.)

Being a mere creditor at large, he had no lien on the assigned property, and no right to a preference of payment out of it, though the debt and assigned property were the debt and property of Bruce McKinney, and the assignment of Mary B. McKinney to Banks and Pomroy was unauthorized and void.

I do not think that the undertaking given by Banks and Pomroy, on the dissolution of the injunction in the action, to apply so much of the proceeds of the assigned property and effects as should be sufficient to satisfy the plaintiff's claim with costs, if established in that action, against the said property and effects, affects the question; and I think that Cropsey's acceptance of the assignment from Bruce McKinney is inconsistent with any claim to a preference over other creditors in or through this action. But I do not see why Cropsey is not entitled in the action to a judgment against Bruce McKinney for his debt.

As to the other two actions, the only question before me now is the question of title, as between the assignees of Bruce and the assignees of Mary B. McKinney. I think the decision of this question depends entirely upon whether the marriage between Bruce and Mary was absolutely void or voidable only, McCullom, her first husband, being alive when the marriage ceremony took place between her and McKinney. And whether her marriage with McKinney was void, or voidable only, I think depends upon the questions of fact, as to which the great mass of the testimony in these cases was taken, whether Gilbert McCullom absented himself for five years, prior to July 22d, 1842; and whether Mary his wife married McKinney on the 22d July, 1842, not knowing McCullom to be living during the five years prior to such marriage, (but supposing him to be dead.)

If McCullom had absented himself "for the space of five successive years" prior to her marriage with McKinney, without being known to her to be living during that time; and

Cropsey v. McKinney.

she married McKinney in good faith, supposing McCullom to be dead, then by the statute (2 R. S. 139, § 6) her marriage with McKinney will be void "only from the time its nullity shall be pronounced by a court of competent jurisdiction;" otherwise it was at common law and by statute absolutely void. (2 R. S. 139, § 5.)

If her marriage with McKinney was and is voidable only, then I think the title of the assignees of Bruce McKinney to the property and proceeds of the property in question is good as against the assignees of Mary B. McKinney.

As McCullom is dead, this marriage, if voidable only, and it and its issue are within the protection of the statute, can be declared void only on the application of one of the parties to it, during the lifetime of the other. (2 R. S. 142, § 22.) It cannot be declared void collaterally, in these actions or either of them.

If her marriage with Bruce McKinney was contracted by her in good faith and under circumstances, which by the statute makes it voidable only, then as between the assignees of Bruce McKinney and the assignees of Mary B. McKinney, and as to the question of title between them in these actions, that marriage was and is valid, and she and Bruce McKinney were and are husband and wife. If the marriage is voidable only as between Bruce and Mary B. McKinney, it follows, I think, that as between these parties, as respects the title to the assigned property in these actions, the question is precisely the same as if McCullom had been dead, when the marriage with Bruce McKinney was contracted.

Without reference to the deed of separation between Bruce and Mary B. McKinney and Langdon as her trustee, in 1844, Bruce McKinney by the marriage was vested with a right to all of her goods and chattels and to her earnings, and the property acquired by her in the business since. (2 Kent, 143. 3 T. R. 631. Lovett v. Robinson, 7 How. Pr. R. 105. Gates v. Brower, 5 Selden, 205.)

I do not think that the acts of 1848 and 1849, giving addition