Manny v. Logan

27 Mo. 528 | Mo. | 1858

Lead Opinion

Napton, Judge,

delivered the opinion of the court.

This was an application by the plaintiffs, claiming to be creditors of one Riggs — who had assigned his goods and lands to Logan for the benefit of certain creditors named, and afterwards for the benefit of creditors generally — to compel the trustee Logan to proceed under our statute, file his inventory, give bond, &c. The claim was resisted on the ground that the assignment was for value, and not therefore a voluntary one under our statute, and that Logan, the assignee, was one of the creditors.

The assignment is unquestionably within the provisions of our statute. It is for the benefit of all the.assignor’s creditors, though an attempt is made to classify and give preferences to some. All assignments of this character which have any validity as against creditors not named, if there are any such, must be founded on a valuable consideration; but if the creditors named are bona fide, that is sufficient to support the instrument. (19 Mo. 17.) Whatever may be the proper meaning of the term voluntary used in our statute, it certainly was not intended to exclude from the operation of the law all assignments which were founded on a valuable consideration. The term is probably borrowed from the English books, where assignments in bankruptcy were sometimes created by operation of the law. The fact that Logan, the trustee, is a creditor does not take the assignment out of the statute. The only effect it could have would be to authorize the court to appoint another trustee. The other judges concurring, judgment reversed and cause remanded.

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Concurrence Opinion

Scott, Judge.

I concur in reversing the judgment. The term “ voluntary” is applied to assignments to distinguish them from such as are made by the compulsion of the law, as under statutes of bankruptcy and insolvency, or by order of some competent court. (Burrill on Assignments, 5.)