M. Noyes & Co. v. Hickok

27 Vt. 36 | Vt. | 1854

The opinion of the court was delivered by

Isham, J.

The case of Mussey v. Noyes et al., 26 Vt. 462, seems to dispose of the principal question involved in this case. It was there held, that a partial assignment by a debtor of his property for the payment of his debts, though made to one in trust, was not a general assignment within the act of 1843, rendering all general assignments void. To render a transfer void under the statute as a general assignment, it must be of all the debtor’s property and in trustfor the benefit of creditors. Treating those questions as having been determined, we are only to inquire in this case, whether this was a partial assignment, or whether it embraced all the debtor’s property, or such a substantial part of it, as to render the part reserved, so inconsiderable in amount with reference to the whole, that it must be treated as a general assignment, and void under the statute.

The assignment on its face does not purport to be a transfer of all the debtor’s property. It is somewhat difficult to arrive with much certainty at either the real value of the property assigned, or of that which remained unassigned. The transfer included the property which he had, and which is usually kept for sale by manufacturers of tin ware, and also three claims which were due the debtor from other persons, part of which proved unavailable. The estimated value of the property transferred was about fourteen hundred dollars. The property remaining in the hands of the trustee, after that transfer, consisted of all his claims and demands except those above referred to, and amounted to between five hundred and one thousand dollars, his machinery valued at about three hundred dollars, and some other articles of personal property, including a horse and wagon. The real estate of the trustee remained in his hands, the same as before the transfer, and though incumbered, there is obviously property in those premises of considerable value, more than the amount of the incumbrances, and which would be much increased if the debt of this trustee was satisfied by the personal property assigned to him for that purpose. From the manner in which this matter is left by the disclosure, and by the plaintiff also, as he has introduced no testimony whatever to implicate it, we are inclined to think that about as much remained in the hands of the debtor, as was transferred to the trustee. Under such circumstances the transfer should bo regarded as a partial-assignment only, and falling within the doctrine of the case of Mussey v. Baldwin, and of similar cases in other states, where such transfers have been held valid, and as not within the- statute prohibting general assignments.

In relation to the right of the trustee to retain the amount of his claims from the funds in his hands, if the assignment is to be treated as void, it is proper to observe, that the 51st section of the act, (Comp. Stat. p. 263,) giving such right, extends only to existing demands arising on contract, and not to matters on which the trustee stands simply as surety. If the trustee has absolutely assumed the payment of the debts for which lie stood as surety, his right to retain that amount would probably exist under the statute; and would seem to be sustained by the case of Strong v. Mitchell, 19 Vt. 644. The eases of Goddard v. Hapgood and Scofield v. Sanders, 25 Vt. 351, 181, fall within this principle, and beyond that the authorities do not seem to extend that right. The question in this case, however, is unimportant, as the transfer is deemed valid, and the trustee can hold the property for the purposes for which it was transferred to him.

The judgment of the county court is affirmed.