73 Iowa 448 | Iowa | 1887
I. William Stolteben assigned his property to defendant for the benefit of his creditors. The plaintiff filed a claim with the assignee, based upon six promissory
II. The assignment transferred the legal title of the property of the assignee, to be held in trust by the assignee for the payment of the creditors of the assignor, and, if any balance remained, to pay to the assignor, who continued to hold a trust interest to that extent in the property. The assignment did not change the relation of the creditors and the assignor. He continued to be the debtor, and his contracts upon which his indebtedness arose continued binding upon him. The only effect of the assignment, as between the debtor and creditors, was to subject the property assigned to the payment of his debts. The assignee, under the law, is charged with the power and duty to devote the property to that purpose. He canno-t by his acts or objections change the rights and relations existing under the contract between the assignor and his creditors.
The statute.provides that an action on a promissory note is barred in ten years, and that a eause of action thus barred is “revived * * * by a new promise to pay the the same,” made in writing. (Code, § 2539.) This new promise, is, of course, to be made by the debtor. The statute does not contemplate the promise of any other person.
III. Day v. Baldwin, 34 Iowa, 380, is not in conflict with our conclusions. The person making the admission which in that case was set up as reviving the debt had no interest in the event of the suit, and it was not sought to bind him by the judgment. In this case, the assignor is the debtor, notwithstanding the assignment, and he has an interest in the distribution of the proceeds of the property assigned, and is entitled to the surplus, should any remain after the debts are paid.
It is our opinion that the judgment of the circuit court-ought to be ■ Nevebsed.