
    Wambaugh, Trustee, v. The Northwestern Mutual Line Insurance Co. et al.
    
      Transfer of property to trustee — For benefit of creditors — Is an assignment — Though maker may be solvent — Form of instrument not material — Probate court jurisdiction and proceedings.
    
    1. When any person makes a transfer of property, money, rights . or credits to a trustee in trust for the benefit of creditors such transfer constitutes an assignment under Title II, chapter 4 of Part Third, Revised Statutes of this state.
    2. Even though'the maker of such transfer should be fully solvent) still the transfer will be held to be an assignment if it is made to a trustee in trust for the benefit of creditors.
    3. Any instrument which by a transfer of property creates a trust in a trustee for the benefit of creditors, is an assignment, and its form in other respects is not material.
    4. A deed conveying real property to a trustee in trust for the benefit of creditors constitutes an assignment, and such deed or a copy thereof should be filed in the probate court of the county in which the grantor resided at the time of the making of such deed, within ten days after its delivery, and on failure to so file the same, the probate judge should remove the assignee, and appoint a trustee to execute the trust under the direction of the probate court.
    5. In such cases no proceeding is necessary in the court of common pleas to declare such deed to be an assignment, but the legal effect of such deed may be determined by the probate court upon application by the assignor or a creditor, subject to a review upon error in a higher court.
    6. Upon the removal of the assignee named in the deed of assignment, and the appointment of a trustee by the probate court to execute the trust, the legal title to the assigned property will follow such appointment and vest in the trustee, and upon a sale by the trustee, confirmation by the court, and deed of conveyance, the purchaser will take a good title.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Delaware county.
    On the nineteenth day of January, 1897, John W. Jones of Delaware county executed and delivered to James W. Gallant, Stephen O. Thomas and Charles M. Wambaugh his certain deed of that date, conveying to them 480 acres of land in Delaware county in this state, ■ together with certain town property. The deed was upon the trust following as expressed therein:
    “To have and to hold said premises, with all the privileges and appurtenances thereto belonging, to the said James W. Gallant, Stephen C. Thomas and Charles M. Wambaugh, as trustees, their successors and assigns forever. This conveyance being made to the said James W. Gallant, Stephen C. Thomas and Charles M. Wambaugh, as trustees, for the following purposes, to-wit: Said trustees to take immediate possession of said lands, subject to existing leases, to collect all rents, income and profits arising from said lands and tenements, and to sell the same in such lots and parcels as they may deem best, whenever such sales can be made to the advantage and interest of my creditors, and said trustees are authorized and empowered to execute deeds to the purchasers of said lands whenever sales are made by them, with or without covenants of warranty, as they may deem best, and to give such time for the payment of the purchase money to the purchasers thereof as they may think proper, provided said deferred payments are secured by mortgage on the premises sold, and until said lands are so sold said trustees are hereby authorized to rent or lease the same in such manner as they may deem best to secure the- best income therefrom. Said trustees are hereby authorized to pajr all taxes and assessments levied upon said lands and tenements, and to make all necessary and proper repairs thereon, and out of the proceeds arising from the rents and profits and from the sale of said lands and tenements said trustees are hereby authorized and directed to pay and distribute the same, as follows:
    1. To pay all liens upon said premises in the order of their priority.
    2. To pay all my individual creditors as their claims are properly proven to said trustees, making equal distribution among them so that no preference shall be given to one individual creditor over another.
    3. To pay to the creditors of Miller, Jones & Co., the amounts which may be found due to them from me as a member of said firm, making equal distribution among them as their claims may be ascertained and determined.
    ■ 4. Whatever surplus may remain after the payment of all the above claims, in lands or money, said trustees are to transfer or pay over to said John W. Jones, his administrators, executors and assigns. The said trustees are to have a reasonable compensation for their services and expenses in the execution of this trust, the amount to be agreed upon by the parties hereto, or fixed by a court having proper jurisdiction in the premises, and the same to be paid or provided for before distribution or payment is made to my creditors, as herein provided for.
    This conveyance is made at the same time with other deeds for grantor’s lands in Marion and Franklin counties, to the same grantees so as to constitute one trust for said purposes, of all of grantor’s property.”
    A like deed of the same date was executed and delivered by him to the same trustees for 537 acres of land in Marion county, both of which deeds were duly left for record and recorded. While both deeds recite that a deed was also executed and delivered for lands in Franklin county, it appears that the deed for the Franklin county lands was never executed or delivered, and there is nothing to show whether Mr. Jones had any lands in Franklin county or not.
    On the fifteenth day of October, 1897, The Northwestern Mutual Life Insurance Company' filed the following application in the probate court of Delaware county :
    “And now comes The Northwestern Mutual Life Insurance Company, a corporation, and represents to the court that it is a creditor to said John W. Jones; that on or about January 19, 1897, the said John W. Jones, then a resident of Delaware county, Ohio, made, executed an assignment to James W. Gallant, Stephen C. Thomas and Charles M. Wambaugh, as trustees of all of his real estate in trust for the benefit of his creditors, said assignment being made by three deeds, each bearing date January 19, 1897. One of said deeds conveying to said trustees real estate in Delaware county, Ohio, another of said deeds conveying real «state in Marion county, Ohio, and another of said deeds conveying real estate in Franklin county, Ohio. That said deeds of assignment were delivered to said trustees and were filed for record respectively in the recorder’s office of Marion, Delaware and Franklin county, Ohio, for record on or about January 19, 1897. That neither said deeds of assignment nor any copy thereof has been filed in the probate court of Delaware county, Ohio, wherein said John W. Jones resided, at the date of the execution of said assignment, though more than ten (10) days have passed after the execution of the same, and have failed to give bond for more than ten (lOj days after the execution of said deeds of assignment to them.
    Wherefore, The Northwestern Mutual Life Insurance Company, a corporation and a creditor as aforesaid, asks the court to make and enter an order removing said trustees, and to appoint a trustee in their place to administer said trust under the Statutes of Ohio, relating to insolvent debtors.”
    The grantees in said deed filed a demurrer to this application which was overruled and exceptions taken, and thereupon they filed the following answer:
    “And now come the trustees named in the application herein filed, and for their answer herein say, that they admit that The Northwestern Mutual Life Insurance Company is a creditor of the said John W. Jones, but they deny that said John W. Jones executed a deed of assignment on the nineteenth day of January, A. D. 1897, or at any other time, but on the contrary, they say that said John W. Jones made deeds of trusts at the time named for certain lands and tenements for the purpose of paying all his creditors alike without preference or priority, and that they accepted said trust, and have ever since been and are still proceeding to execute said trust under the control and direction of the court of common pleas of Delaware county, Ohio, and they deny all other allegations of said application not herein admitted to be true.”
    The matter was heard in the probate court and the two deeds were introduced in evidence, and the court found that Mr. Jones, at the time of making said deeds, was a resident of Delaware county, that The Northwestern Mutual Life Insurance Company was and is a creditor of Mr. Jones, that neither said deeds nor copies thereof were filed in the probate court of Delaware county within ten days after the execution and delivery of said deeds to said trustees, that the said trustees, being the grantees named in said deeds, did not file in the probate court within ten days after the execution and delivery of said deeds their bond for the faithful discharge of their duties as trustees. And thereupon the probate court rendered judgment in favor of the said application and removed said trustees and appointed a trustee to execute said trust, treating said two deeds as a general assignment of said John W. Jones for the benefit of his creditors, which said trustee accepted the trust and gave bond according to law and entered upon the discharge of his duties. The grantees in said deed excepted to the ruling of the probate court and filed a motion for a new trial, which was overruled, and they also took a bill of exceptions setting out all the evidence that was offered on the hearing, and filed a petition in error in the court of common pleas to reverse the judgment of the probate court.
    The court of common pleas affirmed the judgment of the probate court, and thereupon James W. Gallant and Stephen C. Thomas refused to prosecute the case further. And Charles M. Wambaugh, trustee, filed a petition in error in the circuit court seeking to reverse the judgments of the lower courts, and made said James W. Gallant and Stephen C. Thomas defendants in error. The circuit court affirmed the judgments, and thereupon Mr. Wambaugh as trustee filed a petition in error in this court, still joining said James W. Gallant and Stephen C. Thomas as defendants in error, seeking to reverse the judgments of the courts below.
    
      Powell c& Minaban and John A. Gone, for plaintiff in error.
    We claim that the jurisdiction of the probate court in such cases depends upon two facts : First, that the debtor is insolvent; and, second, that he has made a voluntary assignment in trust for the benefit of his creditors. Neither of these facts appeared in the pleading’s or evidence offered in this ease. The Northwestern Mutual Life Insurance Company, in support of its application, presented to the probate court the two deeds of trust hereinbefore referred to. This did not give the court jurisdiction in the premises. The probate court is only authorized to act when a regular deed of assignment has been presented to it executed by an insolvent debtor in trust for the benefit of his creditors. ■
    In this application there was no claim made that John W. Jones was insolvent or that this deed of trust was made in contemplation of insolvency or that he undertook to prefer some creditors, or to hinder and delay others. These deeds of trust specifically direct the three trustees to take possession of the property described and to sell the same at public or private sale upon such terms as the trustees may think proper and distribute the proceeds in the manner provided for in the deeds.
    It is not within the power of the probate court to change the character of these instruments. That can only be done by the court of common pleas. It can only be done by petition filed charging that the instruments were fraudulent as to creditors and having them declared to be deeds of assignment for the benefit of all creditors alike.
    These deeds were drafted after forms which have been approved by this court in several cases, especially in the cases of Hoffman et al. v. Mackell et al., 5 Ohio St., 124; Conklin et al. v. Coonrod & Crum, 6 Ohio St., 612; Floyd et al. v. Smith, 9 Ohio St., 546.
    The probate court would have power under these sections (6343, 6344) to appoint a trustee only after a court of competent jurisdiction had declared the instruments to be void as fraudulent against creditors. Spoors v. Coen, 44 Ohio St., 497.
    
      Sayler <& Sayler; J. D. Van Deman and Wolford c& Crissinger, for defendants in error.
    In order to fully comprehend the force and effect of the present statutes of Ohio relating to assignments for the benefit of creditors, as contained in chapter 4 section 6335, etc., Revised Statutes, of Ohio, it will be profitable to review the history of the assignment laws of Ohio.
    Prior to the act of April 6, 1859 (56 Yol. Statutes, 231; 4 Curwen’s Statutes, 3352), there was no general act regulating the mode of administering assignments in trust for the benefit of creditors in Ohio. Under the constitution of 1802, and at the time when there was no probate court existing in Ohio, the legislature passed laws directing the mode of proceeding in chancery. One of the early acts thus passed was that of February 23, 1835, found in 1 Curwen’s Revised Statutes, of Ohio, 161; 1 Swan & Critchfield, 712, and note.
    That act was supplanted in 1838 by section 3, found in 1 Curwen’s Statutes, 424.
    
      After the adoption of the constitution, of 1851 the legislature passed an act on March 14, 1853; 3 Curwen’s Statutes, 2239; Mitchell v. Gazzam, 12 Ohio, 336.
    The only difference between the act of 1853 and the acts of 1835 and 1838 is the fact that the act of 1853 drops out the reference to the court of chancery, and places the jurisdiction “ subject to the control of the courts.” In 1853, therefore, the cqmmon pleas court took jurisdiction under that section of the act, the probate court not having jurisdiction over assignment matters.
    On April 6, .1859, the legislature passed an act regulating the mode of administering assignments in trust for the benefit of creditors, 56 Vol. Statutes, 231; 4 Curwen’s Statutes, 3352; 3 Am., and Eng. Ency. Law, 2d Ed., p. 5; Law Reports, Appeal Cases, 1894; s. c. 6 Rep., 6; Mayer et al. v. Heilman, 91 U. S., 496; Schroder v. Tompkins et al., 58 Fed. Rep., 672; Johnson v. Sharp, 31 Ohio St., 611; see note in 3 Curwen’s Statutes, 2239.
    That the probate court now has complete jurisdiction under chapter 4 of title 2, sections 6332 et seq., Revised Statutes there can be no doubt. It is no longer an open question in Ohio. This jurisdiction in the probate court is exclusive of all other courts, except as is provided in section 6344 and also, except under section 6351, Revised Statutes (amended in 93 Ohio L., 132). See also for jurisdiction of probate court section 6335 Revised Statutes.
    Under section 6336 the probate court acquires jurisdiction to compel an assignee to file the assignment, etc.
    This act is a special act made especially applicable to assignments for creditors, and being a special act it becomes exclusive and deprives all other courts of jurisdiction of such deeds, and therefore outsets the common pleas court from the jurisdiction which it had of assignment matters prior to the act of April 6, 1859 (4 Curwen, 3352). Betz v. Snyder, 48 Ohio St., 492; Lindeman v. Ingham, 36 Ohio St., 1; Blandy v. Benedict, 42 Ohio St., 295; Sayler v. Simpson, 45 Ohio St., 141; Clapp et al. v. Banking Co. et al., 50 Ohio St., 528; McNeill, Assig. v. Hagerty, Auditor, 51 Ohio St., 255; Havens et al. v. Horton, Jr., 56 Ohio St., 342.
    ' Under the common law, and in general, any person of sound mind, not under a legal disability, may make an assignment for the benefit of creditors. 3 Am. & Eng. Enc. of Law, 2d ed., section 4, page 22. Brown & Ives v. Mintern et al., 2 Gallison’s Rep., 556; Brashear v. West, 7 Peters, (S. C.), 608. .
    The general rule as laid down in 3d Am. & Eng. Enc. of Law, 2d ed. section 31, is that ‘ ‘ the debtors actual of contemplated insolvency is not’ essential to a valid assignment, unless made so by statute.” A person wholly-solvent could under the common law, if he desire, make a valid general assignment for the benefit of his creditors without preference of priority, and therein direct that any surplus that may be left after paying all the debts and expenses shall be returned to him. Ogden v. Peters, 21 N. Y., 23; s. c. 78 Am. Decisions, 122; Ely v. Cook, 18 Barb., N. Y., 612; Angell v. Rosenbury, 12 Mich., 241; Morgenthan v. Harris, 12 Cal., 245; Quinebaugh Bank v. Brewster, 30 Conn., 559; Hunter v. Ferguson, 3 Col. (Ct. of App.), 287; Jaffrey et al. v. Matthews et al., 120 Mo., 317; sections 6335 and 6343 Revised Statutes. Tiere is no limitation in the statute as to the person, and there is no limitation as to his financial condition. Section 6343 has substantially existed in Ohio since its first enactment on February 23, 1835. 1 Curwen; 161.
    It was intended to take away the right which an insolvent person had at common law to prefer creditors by executing deeds of trusts to trustees. Hill v. Jeffrey et al., 8 Ohio, 390; Atkinson et al. v. Tomlinson et al., 1 Ohio St., 237.
    We contend that any person in Ohio, whether solvent or insolvent, can make a valid general assignment for the benefit of his creditors.
    As to the form of the instrument by which an assignment is made : Lee et al. v. Hennick et al., 52 Ohio St., 177. In other states it has also been held that no particular form is necessary. Weber v. Mick, 131 Ill., 520; Farwell v. Cohen, 138 Ill., 216; Schuylkill Bk. v. Reigail, 4 Pa. St., 477; Hall v. Marston, 17 Mass., 575.
    The statutes of Ohio relating to voluntary assignments do not define the word “assignment.” The legislature found general assignments for benefit of creditors in common use, and provided a mode by which the trusts should be enforced. 3 Am. & Eng. Enc. of Law, 2d ed., pp. 6, 7, 8 and 9, and also p. 57. Strong v. Kalk, 91 Wisc., 29; Cribb v. Hibbard, 77 Wisc., 208; Wolf v. Muldrow, (Ark. 1892); s. c. 18 S. W. Rep., 66, following Penzel Co. v. Jett, 54 Ark., 428; Peck v. Merrill, 26 Vt., 686; Dias v. Bouchard, 10 Paige Ch., 461; Blockburne’s Appeals, 39 Pa., 165.
    The word assignment in section 6335 is equivalent to the words, deed, conveyance, transfer. It means any instrument in writing by which the title to real or personal property can be conveyed or transferred.
    
      Similar remarks apply to section 6344, Revised Statutes. In short, sections 6343 and 6344 merely bring under the head of general assignments for benefit of all creditors, certain specific conveyances which otherwise would not be general assignments. Brinkerhoff, trustee, v. Smith et al., 57 Ohio St., 610; Brinkerhoff, trustee, etc., et al. v. Tracey, Adm’r, 55 Ohio St., 558.
    See, also, the following cases in Ohio as to what have been held to be assignments for the benefit of creditors. Gashe v. Young, 51 Ohio St., 376; Maas v. Miller, et al., 58 Ohio St., 483; Bloom v. Noggle et al., 4 Ohio St., 45; Harkrader et al. v. Leiby et al., 4 Ohio St., 602; Dickson et al. v. Rawson et al., 5 Ohio St., 218; Brown & Co. v. Webb, 20 Ohio, 389.
    Most of the above cases arose under section 6343 or section 6344, but, as shown above, that fact makes no difference as to the general principles underlying voluntary assignments for creditors.
    If these deeds in case at bar are in effect deeds of assignment, then as it is admitted that the trustees did not within ten days after the delivery of the said deeds of assignment to them, appear before the probate judge of the county in which the assignor resided at the time of executing the same, etc., as required under section 6335, that the probate court had full authority under section 6336, at the application of any creditor, to make an order removing such trustees and appoint a trustee in their place.
    The probate court having thus the full power to remove the assignee or trustee, there can be no appeal from such order or judgment of removal; for the reason that the order does not affect any property or substantial right, but merely the administration of the trust. Brigel v. Starbuck, 34 Ohio St., 280; Aultman v. Seiberling Co., 31 Ohio St., 201; In re Estate of Still, deceased, 15 Ohio St., 484.
    If the trustee or assignee so removed can not appeal, can he then prosecute error to such order of removal? We maintain that he can not, for the reason that the order so removing is not a final order, and no reversal can be had of an order that is not final.
   Burket, J.

It is conceded by all parties that the conveyances made by John W. Jones to James W. Gallant, Steven C. Thomas and Charles M. Wambaugh, are in legal effect conveyances of property to trustees in trust for the benefit of creditors.

It is also conceded that the Northwestern Mutual Life Insurance Company, defendant in error, was at the date of said conveyance, and still is, a creditor of said John W. Jones.

The insurance company claims that the conveyances are in legal effect an assignment to trustees for the benefit of creditors, while the plaintiff in error claims that the conveyances do not constitute such an assignment.

All conveyances made to a trustee in contemplation of insolvency, or made with intent to hinder, delay or defraud creditors, are assignments under the provisions of sections 6343 and 6344, Revised Statutes, as they stood before the amendment of April 26, 1898, and are to be administered as such. A conveyance in trust may therefore be an assignment when made in contemplation of insolvency. Can it be an assignment when not made in contemplation of insolvency?

While sections 6343 and 6344 provide that conveyances made in contemplation of insolvency with intent to prefer one or more creditors, or made with intent to hinder, delay or defraud creditors, shall be held to be general assignments, and shall inure to the equal benefit of all creditors, these sections do not provide what shall constitute an assignment when not made in contemplation of insolvency, and not with the wrongful intent mentioned in said sections; and we have no statute in this state defining what shall constitute a general assignment for the benefit of creditors. The statutes on the subject of such assignments assume that it is known what constitutes an assignment for the benefit of creditors, and treat the subject from that standpoint. Whatever constitutes an assignment for the benefit of creditors at common law, will be held to be an assignment under our statutes, and in some respects our statutes are broader than the common law, but never narrower.

At common law any person of sound mind could make an assignment of his property to a trustee for the benefit of his creditors. 3 Am. & Eng. Enc. Law., 2d ed., 22.

And such assignment could be made at common law by a person fully solvent. Hunter v. Ferguson, 3 Col. Appeals, 287; Ogden v. Peters, 21 N. Y., 23; Angell v. Rosenbury, 12 Mich., 241; Wolf v. Mudldrow, 18 S. W. Reporter, 55; Penzel Company v. Jett, 54 Ark., 428.

The form of the instrument making the conveyance is not material. Any instrument which transfers the property to a trustee in trust for the benefit of creditors, constitutes an assignment at common law. In such cases the conveyance is in trúst for the benefit of others, and such trust characterizes the transaction as an assignment, rather than as a simple conveyance. It has been held that the form of the instrument is immaterial when the conveyance is made in contemplation of insolvency, and we hold the same to be true when the conveyance is made by a person fully solvent. Lee v. Hennick, 52 Ohio St., 177, 182.

The deeds in question in this case conveyed the property to trustees in trust for the benefit of creditors and therefore, in legal effect, they constitute an assignment, even though Mr. Jones may have been fully solvent at the time of the making and delivering of the deeds. Whether he was then solvent or not does not fully appear in the record, but for the purposes of this case he is regarded as solvent.

A.s said deeds in legal effect constitute an assignment, it is clear that under section 6335, Revised Statutes, it was the duty of the trustees to file the deeds, or copies thereof, in the probate court of Delaware county, where Mr. Jones resided, within ten days, as required by that section of the statute, which reads as follows :

“When any person, partnership, association or corporation, shall make an assignment to a trustee of any property, money, rights or credits, in trust for the benefit of creditors, it shall be the duty of said assignee, within ten days after the delivery of the assignment to him, and before disposing of any property so assigned to appear before the probate judge of the county in which the assignor resided at the time of executing the said assignment, produce the original assignment, or a copy thereof, cause the same to be filed in the probate court, and enter into a bond, payable to the state, in such sum and with such sureties as shall be approved by the court, conditioned for the faithful performance, by said assignee, of his duties according to law; and the court may require the assignee, or any trustee subsequently appointed, to execute an additional undertaking whenever the interests of the creditors of the assignor demand the same; any such assignment shall take effect only from the time of its delivery to the probate judge, and the exact time of such delivery shall be indorsed thereon by the probate judge, who shall immediately note the filing on the journal of the court; and it may be delivered by the assignor to the probate judge either before or after its delivery to the assignee. ’ ’

The public policy established by this section regards a man who places his property into the hands of a trustee for the benefit of. his creditors, and thereby deprives himself of the power of using his property for that purpose, the same as dead as to such property, and the trust a public one in which the state is interested, because the state is always interested to see that creditors receive their just dues. Therefore, the state requires that such a trust shall be administered, under the direction of its courts, and bonds are required of the trustee for the faithful performance of his duties as such trustee, that is for the faithful administration of the trust. The trustees in this case, having failed for more than ten days to file the said deeds, or copies thereof, in the probate court, it became the duty of that court to remove said trustees and appoint others as provided in section 6336, Revised Statutes, which reads as follows:

“If any such assignment or a copy thereof shall, for ten days after the execution of the assignment, not be filed in the probate court as aforesaid, or if the assignee named thereon fail for that time to give bond as aforesaid, the court shall, on the application of the assignor, or of any of his creditors, make an order removing such assignee and appoint a trustee in his place: provided, that if more than one assignee be named in the assignment, and some of them fail as aforesaid, the court may permit the assignee or assignee's complying with the preceding section to qualify and enter upon the discharge of the duties of the trust.”

The deeds were not m ade in contemplation of insolvency, with intent to prefer one or more creditors, nor with intent to hinder, delay or defraud creditors, and therefore no action is required in the court of common pleas as provided in section 6344, Revised Statutes, as it stood before the amendment of April 26, 1898. The object of the action provided for in that section is to set aside a fraudulent conveyance and ascertain the trust, and declare it ■to inure to the equal benefit of all creditors. Here the deeds themselves declare the trust to be for the equal benefit of all creditors, and there is no action necessary to establish that which the deeds have already established. The effort here is not to set aside a conveyance, but to have the conveyance executed according to its terms, and administered under the orders and supervision of the probate court. All parties concede the deeds to be valid, and the only controversy is as to the manner of executing the trust thereby created.

Before the passage of the act of April 6, 1859, entitled “An act to regulate the mode of administering’ assignments in trust for the benefit of creditors,” 56 Ohio Laws, 231., S. & C., 709, such trusts were administered in the court of common pleas, which might under former statutes require security of the trustees for the faithful execution of the trust, or remove them and appoint others as justice might require. See act of March 14, 1853 51 Ohio Laws, 463, S. & C., 712, Note.

By the act of April 6, 1859, the jurisdiction in matters of assignment was vested exclusively in the probate court, where it has ever since remained and now the court of common pleas has no jurisdiction in matters of assignments, except as provided in sections 6344 and 6351, Revised Statutes, and therefore the cases of Hoffman v. Mackall, 5 Ohio St., 124 ; Conkling v. Coonrod, 6 Ohio St., 612, and Floyd v. Smith, 9 Ohio St., 546, are not applicable here, because they all arose and were decided before the probate court obtained jurisdiction of assignment matters, and while such jurisdiction was exercised by the court of common pleas.

The deeds in the above cases of Hoffman v. Mackall, and Conklin v. Coonrod, were very much like the deeds in the case at bar, and they were treated as assignments by the parties and by the court, and the effort in those cases was to set aside the conveyances as fraudulent, and not to execute the conveyances as is the case here. The conveyances in both cases were upheld as valid and no question was made as to the manner of administering the trust, as it had then to be administered in the court of common pleas, the probate court not yet having acquired jurisdiction.

The above case of Floyd v. Smith, was an action by Mr. Smith, to whom a transfer of personal property" had been made-in trust, against the sheriff who had taken the property in execution in a suit against the assignor, the sheriff claiming the transfer to be fraudulent and void. The question was as to the validity of the transfer, and the transfer was sustained. No question was made as to the manner of executing the trust.

For the reason that the probate court had not then acquired jurisdiction, and the further reason that the questions presented and decided were entirely different from the questions in this case, those cases are not applicable here, and throw no light upon the questions involved in this case.

< All assignments, or copies thereof, are required by section 6335, to be filed in the probate court, and it has been urged that before such filing can be legally required, there must be an adjudication in the court of common pleas to the effect that the deeds in question constitute an assignment. That adjudication is not necessary and is not required by any provision . of the statute. The probate court having jurisdiction in matters of assignment, can determine that question itself upon the application of the assignor or a creditor, subject to a review on error in the higher courts as was done in this case.

It is contended by counsel for plaintiff in error that the deeds of conveyance vested the title to the lands in the trustees, and that their removal and the appointment of a trustee by the probate court cannot have the effect to vest title in such trustee, and that a purchaser from such trustee would not take a good title. This contention is not sound. It was said in McNeill v. Hagrty, Auditor, 51 Ohio St., 255, 263, that in such cases the legal title follows the order of the court and vests in the trustee appointed by the probate court. In this case the title vested in the trustees under the deed in trust for the creditors, and such trust is under the jurisdiction and control of the probate court, and certainly the removal of the trustee by the order of the probate court, and the appointment of another trustee has the legal effect, when a sale is made and confirmed by the court, and deed executed and delivered by the new trustee, to divest the legal title out of the original trustees, and vest the same in the purchaser as a good and indefeasible title. Such being the case, the purchaser will take a good title.

A persistent effort has been made by counsel for the insurance company to have this case disposed of on technical points of practice, without reaching the merits of the controversy between the parties, but we regard the points raised as not well taken, and have considered the case on its merits.

Judgment affirmed.  