32 Minn. 60 | Minn. | 1884
Our insolvent law (Law's 1881, e. 148) authorizes a debtor whose property is levied upon, directly or by garnishment, to make an assignment of all his unexempt property for the equal bene
The following conclusions appear to us to be fairly deducible from the provisions of the act:
First. As the act authorizes an assignment by the debtor for the benefit of such of his creditors as shall release their claims against him, it is, of course, implied that there may be creditors who will not release, and therefore will not participate in the benefits of the assignment. Consequently, there may be a surplus in the hands of the assignee after full payment of the claims of all the releasing creditors, as, of course, there possibly may be one even if all the creditors
Second. Upon the perfecting of the assignment, — and to some extent, at least, upon the simple execution of it by the assignor, (see Kingman v. Barton, 24 Minn. 295,) — its entire subject-matter and everything involved in it, including the assigned property, come under the jurisdiction of the district court, ipso facto, and without the institution of any suit or proceeding. By consequence the assigned property is then in custodia legis. Legierse v. Pierce, (Tex. Sup. Ct.) 17 Reporter, 477. No more satisfactory proof of these conclusions can be required than is furnished by the terms and tenor of the insolvent act, and especially of those parts of it which we have cited. They confer upon the district court a supervisory authority and control of the whole business and matter of the assignment from the time when it is perfected until it is fully administered.
Thirdly. And as a consequence of the foregoing conclusions it follows — First, that a stipulation in an assignment that any surplus which may remain in the hands of the assignee after full payment of the releasing creditors shall be returned to the assignor, does not invalidate the assignment as a reservation of benefit to the assignor to the disadvantage of his creditors. This is so, because, whatever might have been the effect of such a stipulation irrespective of statute, our insolvent act clearly recognizes and contemplates the possibility of such surplus as one properly belonging to the assignor, so that the .stipulation gives him no more than the law gives him without it, (Conkling v. Carson, 11 Ill. 503;) and, as we have seen, such a stipulation does not put the surplus out of the reach of non-releasing creditors. It follows, secondly, that the assignment is not avoided by the fraudulent intent of the assignor in making it. If this were not so,
Order affirmed.