We have considered the several objections which have been made to the legality of this assignment; and although some of them have suggested strong doubts, yet we are not persuaded that any of them should prevail to produce a new trial.
1. The deed of assignment is general, without any specification or description of the articles of personal estate conveyed by it. If this had been an ordinary assignment, made irrespective of proceedings under the statute of 1828, as was the deed of trust in the case of Drakeley v. De Forest, 3 Conn. R. 272. this objection might have required a more careful attention; but the trust here was created with a view to the provisions of that statute, by which an inventory is required to be made within two months. The deed to be lodged at first with the court of probate, is the introductory measure, to be completed by the return of the inventory, which then becomes parcel of the proceedings, and may be treated as if attached to the deed of assignment. . And then too, by the action of the court, the property reserved as being exempt from execution, may be designated, if this has not been done in the deed, by the assignor himself.
2. The assignment was not lodged with the court of probate until July 11th, 1842, twenty-one days after it was executed. Whether the excuse suggested for this delay was *331reasonable or not, we do not inquire. It was enough that the deed of assignment was left at the probate office, and became perfected, before these attaching creditors interfered with it. When they attached, they knew the property was, in the hands of the plaintiff as trustee, and that the trust deed had been duly lodged for record with the town-clerk and court of probate. The case, in this respect, is analogous to an ordinary deed of conveyance of real estate, unreasonably kept from record, and yet recorded before a creditor has attached.
3. This assignment was made during the existence of the late bankrupt law of the United States; but we think it was not affected by that law. We shall not discuss the question, how far the power of the several states may be coordinate with the power of Congress on the subject of bankruptcy. It will be conceded, that when Congress has legislated, its legislation may be made to controul and supersede all proceedings under state authority.
Our statute of 1828, under which this assignment was made, is neither a bankrupt nor an insolvent law. It neither discharges contracts, or indebtedness of any kind ; nor does it release either the person or the property of a debtor. It is Conveyances.” It was intended to prevent a debtor, in failing circumstances, by a deed of trust, from defrauding one class of his creditors, by giving a preference to a noth declares all such assignments to be void, and direc^ insolvent may proceed, so that his deed of trust for tie benefit of his creditors, shall be good, and be made effecti^LAWhSCHOOL equal benefit of all.
It is true, that an assignment under this statirK,⅞⅞⅞⅜1 probably be adjudged an act of bankruptcy, under tr rupt law ; and might justify an assignee in bankruptcy ic claiming the estate assigned, as the assets of the bankrupt. But no proceedings under the bankrupt law have ever been instituted. And it would be strange indeed, if the beneficial results of our statute to prevent fraud, should be suspended, by reason merely of the existence of a law of Congress upon a different subject, which neither the insolvent, nor any of his creditors, have proceeded to enforce ! In the case of Dodge v. Sheldon, 6 Mill, 9. it was very correctly adjudged, that the *332transfers °f property declared void by the 2d section of the late act, could not, under that law, become ineffectual, . . nni unless m virtue or proceedings m bankruptcy. I he assignee appointed under that law, is the only person authorized to claim the property assigned.
4. Whether this assignment ought not to be declared fraudulent and void, by reason of the manner in which the assignor has been permitted to treat it, has been with us a question of greater doubt. In the case of Osborne v. Tuller, 14 Conn. R. 529. we held, as assignments under this statute of 1828 were necessarily open and public, and were subjected to judicial controul, and as the bond executed by the trustee was a security to creditors, and came in lieu of the property assigned, that it was not easy to see how such a conveyance could be merely colourable; and therefore, to permit the assignor to retain possession was not, as in ordinary sales, evidence of fraud ; — at least, that proceedings under this statute furnished a reason which the law would justify for permitting the possession to remain unchanged, until the property was disposed of, under the orders of the court. But yet we intimated, that if the assignee permitted the assignor to hold himself out to the world as the owner of the assigned estate, so as to furnish evidence that the assignee considered the assignment a mere pretence, and not to be followed up, that this would be such evidence of fraud as to subject the assignment to the ordinary consequences of ordinary sales, in which there had been no change of possession.
In the present case, the possession of the insolvent, has been only of the real estate, and of such parts of the personal property as were generally used with it and upon it; and none of the chattels inventoried has been sold by him; although he had disposed of some of the timber cut from the farm, and some of the accruing productions, and liad appropriated the avails to pay for labour upon the land. He had not been authorized to sell or dispose of any of the assigned estate ; nor has he done any act falling within the provisions of the act of 1837, requiring the interposition of the court of probate to authorize him to sell the property assigned. The ’ acts of the assignor were not such as to furnish evidence that the trustee had abandoned the trust, but were all in furtherance of its objects. The assignee held a constant supervision, *333and continued to proceed in the estate according to the requirements of the law. Under such circumstances, we cannot hold this assignment fraudulent per se; nor can we say, that the possession retained by the assignor, was not legally' excusable.
A new trial will not be advised.
in this opinion the other Judges concurred.New trial not to be granted.