Howe v. Warren

Baker, J.

(separate opinion): I concur in the conclusion reached by the opinion of Mr. Justice Shore, and in almost everything that is said in that opinion. ' I do not, however, agree with the statement made therein “that the ground of equitable jurisdiction cannot, in this case, be placed upon the necessity of enforcing the trust created by the deed of assignment.” A trust was created by the deed of assignment. If a discontinuance had been lawfully entered under section 15 of the statute, the result would have been to destroy the trust upon which the property was held by the assignee, except so far as the estate had already been disposed of and administered. But a lawful discontinuance could only be accomplished by returning the unadministered property to S. A. Kean, the assignor, and rendering it liable to the demands of his creditors generally, thereby restoring all parties to the same rights and duties existing at the date of the assignment. Turning the property over to Everett M. Warren was in plain violation of the requirement of the statute, and a manifest and palpable fraud upon the statute and upon the rights of the minority, in number and amount, of the creditors of Kean. That which the statute absolutely required should be done was not done, and therefore no valid discontinuance and release from the trust were worked. The property, at least so far as the rights of the minority, in number and amount, of the creditors are concerned, was not freed from the trust created by the deed of assignment. A court of equity has full power, authority and jurisdiction to enforce that trust in their behalf, and I do not clearly see how it can be that these minority creditors can have any standing in a court of chancery, unless it be either upon the ground of a still existing trust, or upon the ground that they have exhausted their remedies at law and stand in the attitude of judgment creditors.