8 Kan. 574 | Kan. | 1871
The opinion of the court was delivered by
Several questions are raised in this case, among which is the one whether a certain voluntary assignment made by James Eobb and Yincent O. Eobb, partners as “ Eobb Brothers,” to ¥m. H. Clark, for the benefit of the
By said assignment' Robb Brothers assigned to Clark a certain store containing boots and shoes, hats and caps, etc., “saving, excepting and reserving from their stock of boots and shoes, hats and caps, goods, wares and merchandise, property to the value of $400 each, which said James Robb and Yincent C. Robb, parties of the first part, shall elect to retain as stock in trade under the laws of the state of Kansas exempting certain property from sale on execution or other process.” In whatever aspect this assignment may be viewed, it-is void. If it be considered that the assignment transferred all the said goods to Clark for the purpose that he should hold them in trust for the Robb Brothers until they should receive $800 worth of the same, and then that he should hold the remainder, if there should be any remainder, in trust for the creditors of the Robb Brothers, such assignment would be void: Gen. Stat., 504, § 1; Kayser v. Heavenrich, 5 Kas., 324. In the case of Kayser v. Heavenrich the doctrine is laid down broadly that “ A voluntary assignment by an insolvent in trust for his creditors, which reserves to the assignor any benefit or advantage out of the property conveyed to the injury of the creditor, renders the assignment void.” In this case $800 worth of the very property assigned is reserved for the benefit of the assignors, and every article of the same is subject to their claim until they make their election as provided by the assignment. But if it be considered that the assignment transferred only an interest in the goods to Clark, constituting him a tenant in common with the Robb Brothers, still the assignment would be void. Viewing the assignment in this light, while the interest of the Robb Brothers may be considered to some extent fixed and definite, the interest of Clark is only contingent, and very indefinite and uncertain. Their interest is $400