Ray v. Hiller

11 Colo. 445 | Colo. | 1888

Stallcup, C.

It is evident that this was a general assignment for the benefit of creditors. All the legislation we then had upon the subject was as follows: “ Whenever any person or corporation shall hereafter make an assignment of his or its estate for the benefit of creditors, the assignee nominated in the deed of assignment, elected, or appointed, shall be required to pay in full, from the proceeds of the estate, all moneys bona fide due to the servants, laborers and employees of such assignor for their wages accruing during the six months next preceding the date of such assignment, but to exceed in no event the sum of $50 to any one person, and then remaining unpaid. All the residue of the proceeds of such estate shall be distributed ratably among all other creditors, and any preference of one creditor over another,except as above allowed, shall be entirely null and void,, anything in the deed of assignment to the contrary notwithstanding.” Sess. Laws 1881, pp. 35, 36.. The evidence was doubtless sufficient to warrant the court in finding that the assignment was intended to be general, and was honestly made for that purpose, without intent thereby to prefer any of the creditors. However, under this legislative enactment, had there been any attempt by the assignment to prefer creditors, such attempt would have been without effect to either prefer creditors, or to vitiate the deed, so as to defeat a ratable distribution of the proceeds of the entire estate among all the creditors. Campbell v. Iron Co. 9 Colo. 60. Under this deed and this legislative enactment, the assignee became vested with right and title to the estate of the assignors for the purpose of paying the debts of the said assignors in full, if sufficient therefor; if not, then ratably, except only as to the preference created by the said legislative enactment. And the assignee became charged with the duty of collecting the personal assets, wherever they might be found, and of distributing the proceeds of the entire estate among the creditors according to the provisions of the said enactment. The circumstance that assets were found that were not definitely enumerated in the deed of assignment could in no way vitiate the deed, nor defeat the equitable distribution of the proceeds of the estate. Platt v. Lott, 17 N. Y. 478; Turner v. Jaycox, 40 N. Y. 470; Burrill, Assignm. § 122; Pingree v. Comstock, 18 Pick. 46. The circumstance that a delivery to the assignee of the amount of the fund on deposit in the New York bank was effected by a draft upon said bank in favor of said assignee, signed by the said assignors, about two- weeks after the execution of the said deed of assignment, could in no way change the character of the original assignment. The making of this draft', and the receipt of the said fund by the assignee thereby, could in no way divest said fund of its trust character, nor make it subject to the said garnishee process. Faxon v. Durant, 9 Metc. 340. The drafts upon the said American Exchange National Bank of New York, made to Darwin Bay, did not operate as an assignment of the amount therein before presentation thereof; and, not having been presented until after the assignee had drawn the funds on deposit there, the holder of the drafts was without right in the said funds so drawn, superibr to the other creditors of the said drawers of the said drafts. Grammel v. Carmer, 55 Mich. 201; Bank v. Boettcher, 5 Colo. 185. The judgment should be affirmed.

RISING and DE FRANCE, 00., concur.

PER OURIAM.

For the reasons stated in the foregoing opinion the judgment is affirmed.

Affirmed.