26 Ind. 242 | Ind. | 1866
The appellant brought his action, claiming as assignee, by virtue of an assignment executed to him under the act providing for voluntary assignments for the benefit of creditors, and charging that one of the appellees had, subsequent to the execution of the instrument conveying the property, and the qualification of the appellant under the trust, obtained judgment against the assignors; that under his direction tho sheriff of the county, who was also made a defendant, had levied an execution issued upon said judgment upon certain real estate included in the assignment, and was about to sell the same. The appellant prayed an injunction, and for other proper relief. A demurrer was sustained to the complaint, and judgment entered thereon.
It is insisted that as the injunction was refused, and the time fixed for the salo has now passed, a reversal of this judgment cannot avail the-appellant. This may be true, so far as the prayer for an injunction is to be considered, but if the complaint is sufficient for the purposes of an injunction, the prayer for proper relief upon the facts stated required the court to determine the validity of the levy and the lieu of the judgment attempted to be enforced upon the land.
The only point in which it is urged that the complaint is defective, is that it does not aver the filing in the office of the recorder of the county of the schedule, which by law is required to accompany the indenture of assignment.
The second section of the act “ providing for voluntary assignments of personal and real property in trust for the benefit of creditors, and regulating the mode of administering the same,” (1 G. & H. 114,) requires that “all assignments under the act shall be by indenture, duly signed and acknowledged before some person duly authoi’ized to take
Again, the distinction between the instrument of assignment and the schedule accompanying it is still more distinctly recognized in the third section of the act, and it is there provided that “ within fifteen days after the execution of any such assignment, the trustee shall file a
The act, some provisions of which we have considered, discloses the legislative purpose in the enactment of the statute: That purpose was to enable debtors in embarrassed or failing circumstances to make, under the supervision of the court, an equal and just distribution of all their property. The act contains provisions protecting the creditors frbm-attempted fraud on the part of the debtor, and. subjecting to the trust property fraudulently omitted from the assignment or schedule. The intent of the act is to secure an equitable distribution of the debtor’s estate, and prevent one creditor from obtaining undue advantage over others. When, therefore, the instrument upon its face conforms to the requirements of the act, and a substantial compliance has also been made by the trustee, this court should not, by a technical construction of the language of the law, defeat the evident legislative purpose. The demurrer should have been overruled.
The judgment is reversed, with costs, and the cause remanded for further proceedings.