85 Mo. 23 | Mo. | 1884
Jasper N. Cummins and. Lewis B. Handley, composing the firm of Cummins & Handley, ■carried on business as merchants at Green City, in Cass county, for a number of years. The firm became largely indebted, among their creditors being Tootle, Hanna & Company, the defendants herein. Handley became the partner of Cummins in 1880, and sold out to him in November, 1881,between the first and the tenth days of the month, it seems, for about $1,100, Cummins to take assets andassume liabilities. On November 31, Cummins and wife gave a deed of trust on a partnership lot on which a grain house was situate, and on another lot to secure the payment of about nine hundred and thirty-five dollars to Handley, the latter having taken certain notes belonging to the firm for the balance of what he was to get for his interest in the firm property. December 1, Cummins made an assignment to his son-in-law, Isaac H. Liston, for the benefit of his creditors. On December 3, Tootle, Hanna & Company, in a suit in the Cass circuit court against Cummins & Handley, attached the property assigned by Cummins to Liston. S. Z. Hartzler was appointed by the circuit court assignee of Cummins, Liston being unable to give a bond. Thereupon Hartzler qualified as such assignee, and interpleaded for the property assigned to Liston, and afterwards seized in attachment. The case made on the interplea was tried by the court without the intervention of a jury, and judgment given for the interpleader, to reverse which the attaching creditor appealed to this court.
Appellants argue that the pretended sale of Handley to Cummins was fraudulent, and the deed of trust from Cummins a part of the same intentional fraud. The
The decision of the case must hinge upon the one declaration given for the interpleader, upon which a number of questions arise. If it was not error to give-this declaration it was not error to refuse those asked by defendants. It is this :
“If the court, sitting as a jury, believes from the evidence that Jasper N. Cummins was, on and prior to-the first day of December, 1881, indebted to the various-parties described in evidence, and insolvent; that in good, faith, for the sole purpose of paying off his debts and liabilities, he made a general assignment of all his goods, chattels, property and effects, subject by law to the payment of his debts, to Isaac M. Liston, assignee, for the use and benefit of all his creditors aforesaid ; that said Liston, in good faith, for the sole purpose of carrying into execution the duties and trust devolving upon b-im by virtue of said assignment, did enter into possession of said assigned property, as assignee aforesaid, prior to the levy of the attachment herein, and was proceeding in good faith, under said assignment, to take an inventory of the goods, chattels, property and effects of said Cummins, and was in the actual possession thereof, as such assignee, proceeding to execute the trust aforesaid, before and at the time of the levy of the writ of attachment
Under this declaration, the only one given, the finding of the court disposes of all issues of fact and all arguments upon the tendency and weight of the evidence, etc., leaving for consideration here certain questions of law only. The deed of assignment to Liston, after reciting that Cummins was unable to pay his debts in full, and desired to make a fair and equitable distribution of all his property among his creditors, conveys, etc., to-Liston and his assigns forever “all and singular the lands, tenements and hereditaments * * * wheresoever the same may be situated, and which lands are intended to be described in schedule ‘A’ hereto annexed, and to pass to said assignee under this assignment, whether correctly described or not, except homestead of said party of the first part, and also all goods, chattels, rights and credits, judgments, bonds, dioses in action, evidences of debt, and property of every name and nature whatsoever of the said party of the first part, and the books, vouchers and securities relating to the same and which are intended to be described and enumerated in a schedule of same hereto annexed as exhibit ‘ B,5 and all to pass to' the said assignee, whether described or not, except such articles of property and such real estate as are by law exempt from execution. To have * * * in trust for the use and benefit of all the creditors of the said party of the first part, and to be held and cared for, controlled and disposed of according to the statutes of Missouri concerning assignments for the benefit of creditors. And it is further specified that if said schedule ‘ B’ is not filed with or annexed to this deed of assignment, then the inventory filed with the circuit court of said county shall describe and specify said personal property * * * .”
This deed was executed and acknowledged December 1, and "filed for record December 5. No schedules were attached to it till December 8, when Cummins made one
It is urged that the deed of assignment was inopera
As Cummins and Handley, as a firm, were largely indebted, it is said that the assignment cannot stand because the partnership property is assigned for the benefit of all the creditors of Cummins, and not for the benefit of the ■creditors of the firm. Handley having sold out to Cummins and retired from the firm, and Cummins having assumed the payment of all the debts of the firm, this transaction between Cummins and Handly cannot be investigated from anything supplied by the record. It is easy to understand how Cummins would follow the statute, section 354, by assigning for the benefit of all his creditors. In this is nothing to impeach the good faith of anybody, and, since the court has complete control over the allowance of demands against the assigned estate, and will act at the proper suggestion of anyone interested, I do not think the assignment can be held void, as a conclusion of law. If Handley had sold his interest in the partnership property, he was not a proper party to a deed of assignment meant to convey and transfer that which Cummins alone owned. The law says the .assignment by the debtor shall be for the benefit of all his creditors. Cummins, then, made an assignment of his property, consisting, in part, of effects formerly ■owned by the firm, and partly of property in which the firm never had any interest. Cummins sustained the relation of a surviving partner, as to the disposition of the property derived from the firm, . and as to the creditors of the firm, but no further. He was under no legal obligation to make the assignment as the sole representative of the dissolved partnership, nor, could he, since he was
A final objection to the deed is, that in it Cummins •excepted generally “homestead” and such property as was exempt from execution. That his creditors could not subject to the payment of their demands anything which Cummins had a right to hold exempt from execution, is not the less true because in his deed he insists on his right to the exemptions provided by law. It appears, In fact, by reference to the schedule, and according to my understanding of the whole record, that Cummins ■claims as exempt his homestead, which, in his schedule, he locates and designates, and that alone. This homestead never belonged to the partnership, and so Billingsley v. Spencer, 64 Mo. 355, is not in point. Besides, I do not understand that a deed of assignment is void, as a matter of law, merely because it contains a general reservation of the property exempt by law. Whether or not any particular estate or article passes by the deed, •or is exempt, or is liable to be seized in attachment or •on execution, can always be ascertained in the proper way. Assuming that the trial court reached a correct conclusion concerning the facts of the case, the assignment stands as honest in point of fact, made as the inter-pleader’s declaration puts it, ‘jin good faith for the sole purpose of paying off his (Cummins’) debts,” I find no .reason to disturb the judgment, which should be affirmed.