Beard v. Kimball

The act for “ the equal distribution of property assigned for the benefit of creditors,” passed July 5, 1834, provides that no assignment made for the benefit of creditors, of any debtor assigning his property, shall be valid in law except the same shall provide for an equal distribution of all real, mixed, or personal estate, among the several creditors of the person or persons making such assignment, in equal proportion, according to their respective claims.

It does not appear clearly that the property assigned in this case constituted all the goods and estate of the principal debtor, for the reason that they are defined as being all the goods and estate of the debtor “ in the schedule hereunto annexed, and particularly mentioned and expressed.” Though the previous expressions assigning the property are very general in their character, they may, notwithstanding, be limited by the concluding clause ; and, if so limited, it is clearly not necessarily an assignment of all the debtor’s goods and estate, as required by the statute.

A similar exception applies to that portion of the assignment providing for the payment of the proceeds realized from the sales of the property to the creditors of the assignor, “in the schedule annexed to the assignment.” The names of but a portion of the creditors were affixed to the assignment, consisting merely of those who voluntarily signed their names to it, agreeing to abide by its provisions.

The assignment, therefore, does not convey the property for distribution among the several creditors of the debtor, without restriction, as is required by the statute.

A farther objection to this assignment is, as to the manner *473in which it is authenticated by the oath of the assignor. The statute provides that no assignment shall be valid, arid have effect, until the person making the same shall have made oath that lie has placed and assigned, and the true intention of his assignment was to place in the hands of his assignees, all his property, of every description, except such as is by law exempted from attachment and execution, by an act for the relief of poor debtors, passed January 3, 1829, to be divided among his creditors in proportion to their respective demands,”

The oath of the debtor is, that he has assigned “ all his property, as well real as personal, of what kind, nature, or quality soever, or that has, or may come to his knowledge, for the payment of all his just debts.” This may, perhaps, constitute a substantial compliance with the provisions of the statute ; but however this maybe,the assignment is in other respects defective, and invalid, and passed no title to the property, under the statute. The trustees must, therefore, be holden to the plaintiff for the amount disclosed by them as in their hands, to the extent of the plaintiff’s claim.

Judgment for the plaintiff.