39 Minn. 520 | Minn. | 1888
This appeal is from an order of the district court
Much of the argument of counsel has been upon the question whether this is an assignment under the insolvent law of 1881, (Laws 1881, c.'148,) or merely a common-law assignment, as regulated by the act of 1876, (Gen. St. 1878, c. 41.) For the purposes of this appeal it seems to us. that this question is immaterial. The trust created by this assignment, by its express terms, is not for the benefit of those creditors who shall release the debtors, but for the benefit of all creditors. No releases are required as a condition of sharing its benefits. This is manifest from the third and fourth subdivisions of the declaration of the trust. The assignee is to pay in full, if the proceeds are sufficient, all the debts and liabilities of the assignors. If not sufficient to pay in full,, such proceeds are to be applied pro rata to the payment of said debts and liabilities. True, there is added, “in the order provided for, by and in accordance with the statute in such case made and provided;” but we think this refers only to the order of payment, and, in any event, it would as appropriately refer to the act of 1876 as to that of 1881. Again, only the surplus is to- be repaid to the assignors which may remain after pay
If it be necessary, in order to constitute an assignment under the insolvent law of 1881, that it shall be for the benefit of only those creditors “who shall file releases of their debts and claims against the debtors, ” then this is not one. If it be held an assignment under that act, it must be on the ground that the debtor may waive releases, (which are solely for his own benefit,) and make the assignment for the benefit of all his creditors unconditionally. But; if so, inasmuch as our insolvent law takes the assignment of the debtor himself as the basis of the procedure in administering his estate, it is very clear that this must be done, if at all, in accordance with the terms of the trust therein declared. Whether, if all the facts exist which authorize the-making of an assignment under section 1 of the act of 1881, (which does not appear in this case except from certain recitals in the instrument,) and if the assignment otherwise conforms to the statute, it would operate, in other respects, as an assignment under the statute, although for the benefit of all creditors unconditionally, and not merely those who may release, it is not necessary to decide. See Sanborn v. Norton, 59 Tex. 308; Schoolher v. Hutchins, 66 Tex. 324, (1 S. W. Rep. 266.) But, in any view of the case, distribution must follow the declared terms of the trust. Creditors have a right to be informed by the assignment itself what its conditions are, and on what terms they
Order affirmed.