Scott v. Guthrie

The certificate of acknowledgment was properly and sufficiently indorsed, and *482covered the schedule ; the assignors being non-residents, the assignment was; properly recorded in the county where the property was. It does not follow that because the omission to do any or all of the acts required by the law of 1860, relative to assignments for the benefit of creditors, may render an assignment inoperative and void, that it is thereby rendered fraudulent also. There was nothing on the face of the assignment to render it fraudulent and void. The assignors had a right, after providing for the payment of all their partnership debts, to direct the payment of their individual debts, and the plaintiff, a creditor of the firm, could not object.

That such clause, if void, is only so under the statute against conveyances for the grantor’s use, (2 R. S., 135, § 1,) and does not avoid the whole assignment. Although, if such clause respecting individual creditors may be void under the statute against conveyances with an intent to hinder, delay and defraud creditors (2 R. S., 137, § 1) by reason of its being evidence of an intent to hinder, delay or defraud individual creditors of the assignor who had the fewest, that defeat cannot be taken advantage of by any other, and particularly preferred creditors, whom there is no evidence of an intent to hinder, delay or defraud. Fraud in an assignment is' made by the Eevised Statutes a question of fact and not of law. (2 R. S., 137, § 4.)