81 Iowa 80 | Iowa | 1890
I. The petition was filed and the attachment was issued on the twenty-first day of January, 1888, and at 12:50 o’clock p. m. the property in controversy was seized under the attachment. D. M. Beams, on the twenty-first day of February, 1888, intervened in the action by petition, claiming the property, or a part of it, under a chattel mortgage executed by August Bischel, March 11, 1886, to secure a promissory note of same date, given for the purchase of some of the goods in controversy. It was acknowledged on the twentieth day of January, 1888, and filed for record on the next day, at one o’ clock p. m. McMillan became a partner of Bischel, acquiring an interest as such in the goods. Subsequently, on the eleventh day of January, 1888, the firm, being known by the style of A. Bischel & Co., in that name executed to James P. Mallison, assignee, an assignment of all the property of the firm rfor the benefit of all its creditors. Beams, claiming under his mortgage, and Mallison, claiming as assignee, intervened, and separately set up and urged their rights to the property in question. No controversy arises in this appeal between the intervenors ; the controversy being wholly between plaintiffs and the intervenors. The assignee, Mallison, seems to concede Beams’ claim under his mortgage.
It will be observed that plaintiffs’ claim to the property rests upon the attachment proceedings, in which it was seized, while Beams’ claim rests on his mortgage, and Mallison’s upon the assignment. We need not consider the objection made by plaintiffs to the
“Know all men by these presents, that the firm of A. Bischel & Co., of Aurelia, Iowa, a firm composed of August Bischel and J. W. McMillan, and doing business under the firm-name and style of A. Bischel & Co., hereby assigns and conveys unto James P. Mallison, of Aurelia, Iowa, all of the property of the said firm not exempt from execution, for the benefit of all of the creditors of said firm, in proportion to the amount of their respective claims and demands. This conveyance is made subject to any existing mortgages on said property or any of it. Done this eleventh day of January, A. D. 1888.”
“A. Bischel & Co.”
III. It is first objected that this instrument is not a general assignment of all the property of the assignor, for the reason that it excepts property exempt from execution, and is for the benefit of the creditors of the firm alone. Property “exemptfrom execution” cannot be taken by the creditor, and may be held by the debtor free from liability for his debts. If such property be omitted from an assignment the instrument is not affected thereby ; for it conveys all property which is subject to