15 Mo. App. 544 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is a suit by attachment brought by the plaintiffs, Rainwater, Boogher & Co., against Edward H. Koch. The attachment was levied on a stock of goods which had been the property of Koch, and R. H. Stevens, Jr., interpleaded, claiming the same as assignee of Koch for the benefit of his creditors. Stevens had claimed the property under the sheriff and marshal’s act; the plaintiff had given an indemnifying bond, and the property had been sold, under an order of sale in the attachment suit, before the trial of the issues raised by the interplea of Stevens. The court, sitting as a jury, found this interplea in favor of Stevens, and rendered a judgment against the plaintiffs in the attachment suit for $160, the value of the property for which Stevens had interpleaded. From this judgment the plaintiffs have appealed.
The deed of assignment under which the interpleader claims title to the property attached contains a reservation in the following language: “Saving and excepting the wearing apparel of the family of' the said first party, four beds and bedding, and such other household and kitchen furniture not exceeding in value $100 ; also all provisions on hand not exceeding in value $100, and being: for
1. The only substantial question which arises upon this record is whether this deed of assignment is rendered fraudulent in law by the fact that, after reserving to the debtor certain property specifically exempt from attachment and execution (Rev. Stats., sect. 2343), it contains a clause reserving to the assignor $300 worth of other personal property to be selected by the assignor in lieu of property exempt under the first and second subdivisions of section 2343 of the Revised Statutes, such selection to be made after the property assigned has been appraised and inventoried by the assignee according to the statute relating to assignments for the benefit of creditors, and at its appraised value. A deed of assignment for the benefit of creditors, which includes all the property of the assignor, “ except -such property as is exempt by law,” is not void by reason of the exception, as containing a reservation to the assign- or’s use. Linniger v. Raymond, 9 Neb. 40; Dausman’s Appeal, 90 Pa. St. 198 ; McCord v. Moore, 5 Heisk. 734. The case of Sugg v. Tillman (2 Swan, 208,) which held the contrary, has been unquestionably overruled in the same court in the later case of McCord v. Moore (supra), though the court in the latter case do not profess to overrule the
We can see no substantial distinction between the reservation in the presént deed and that in the deeds which were before the courts in the cases above cited. In this deed, a right of selection is expressly reserved ,• in the deeds there passed upon, such a right is necessarily implied. A segregation of the exempted property from that not exempted would have to be made before the assignee could take possession and make his inventory. The only difference is a technical difference. In this deed all the property of the assignor, except that specifically reserved, passes to the assignee, but with the right reserved to the1 debtor of after-, wards selecting therefrom, upon the basis of an inventory and appraisement, chattels of the value of $300, which right of selection he is allowed by law to exercise whenever his property is levied upon under an attachment or execution. We can see no difference between the two cases, except in the one case a right of selection is to be exercised under the supervision of the assignee before an inventory and appraisement, and in the other case it is to be exercised under his supervision after an inventory and appraisement, and in accordance with valuations fixed by such appraisement. The latter mode seems better calculated to prevent fraud and secure the rights of creditors than the- former. At all events, we can not understand upon what principle it can be said that the right of selection exercised upon the basis of valuations fixed by appraisers appointed by the court, who are sworn and disinterested officers of the law, has a tendency to hinder, delay, or defraud creditors; while a selec
On technical grounds, a deed of assignment is not void because it requires the assignee, after taking possession of the property assigned, to allow the assignor to select therefrom such property as may be exempt by law from the demands of his creditors. There is no uncertainty in such a deed as to the property which passes, because in construing the terms of a deed, the law deems that to be certain which can be rendered certain. Besides, such a conveyance vests the property in the assignee for the purpose of executing certain trusts allowed by law, and one of these trusts may well be -the re-delivery to the assignor of such property as he may, in pursuance of law, select out of the general mass of property conveyed.
The objection that this right of selection is given only in cases where attachments or executions are levied upon property is too refined for the purposes of practical justice. A creditor is not hindered, delayed, ordefrauded because such a selection is made under the eye of an assignee who is required to give bond for the faithful discharge of his duties, instead of being made under the eye of a constable or sheriff; or because it is made upon the basis of a valuation fixed by appraisers appointed by a court of justice, or by the clerk of such a court, instead of being made upon a valuation fixed by appraisers appointed by a sheriff of constable.
2. Whether the deed is fraudulent in fact, was a question concluded by the finding of fact rendered by the judge who tried the facts on the issues made up upon the interplea of the assignee. No instructions were requested or given, and, as the evidence was conflicting and the burden was upon the plaintiff, no basis is afforded for revising the ruling of the court in this regard.