86 Tenn. 674 | Tenn. | 1888
The questions made in this cause arise upon demurrer to complainant’s bill.
The bill, in substance, charges that on the 12th day of January, 1886, the defendant, C. Mundin-ger, then in a failing condition, made to the complainant, Scheibler, a general assignment of all his property for the benefit of all ' his creditors; that within three months preceding this assignment he suffered his property to be seized under certain collusive attachments, and under executions issued upon judgments by confession, and that these attachments and said judgments were so permitted with the view of giving these favored creditors a preference, and that the preferences so given were in contemplation of the general assignment which he subsequently made.
The assignment is exhibited with the bill, and refers to “ Schedule A” as containing a statement of his property. This schedule is in the following words:
“ Schedule A.
“1. All hardware goods in my store, No. 205 Main Street, Taxing District, Shelby County, and fixtures; said hardware goods consisting of shelf hardware, cutlery, and agricultural implements.
“ 2. Also all notes and accounts due me.
“ 3. And all moneys, whether in my said store or on deposit in any bank in the city of Memphis or elsewhere.
*678 “An itemized description of said hardware goods, and a description of said notes and accounts, will be found in my books and invoices in said store, which books and invoices are embraced in my assignment, and to which I refer for a minute and detailed description thereof.
“ If required I will make this Exhibit A more full.
“ I own no other property save that named, except my household and kitchen furniture.
“ C. MundixgeR.”
“ Subscribed and sworn to before me, March 12th, 1886. Hugh E. Cullen, Clerk.”
The assignee brings the bill to administer the trust irnder the direction of the Court, to have all preferences declared void, and to secure a pro rata distribution among all creditors alike.
The creditors whoso preferences'are attacked demur, and assign numerous grounds of objection to the bill. "We need notice only two. These question the sufficiency of the schedule, and the oath thereto, under Section 4 of Ch. 121, Acts of 1881.
That portion of the section referred to which more immediately concerns the questions now in hand reads: “The debtor making a general assignment shall annex thereto a full and complete in-ventoi’y or schedule, under oath, of all his property of every description.” * * * *
Other parts of the act provide that preference
The instrument, then in common use, which the statute was designed to regulate in practice was one wherein a failing debtor purpor-ted to convey all, or substantially all, of his property for the benefit of a creditor or creditors.
Before this statute, general assignments were most usually of the character . described in Young v. Hail, supra. Creditors who were more urgent than others, or who had some peculiar claims upon the debtor, either of relationship, friendship, or indulgence, were preferred, and other creditors were left to take such surplus as might remain. Sometimes the beneficiaries under the debtor’s trust-deed were divided into, first, second, third, fourth, and fifth class creditors, and in some exceptional cases
Every man has, in general, an inherent right to sell or assign his property, in good faith, so as to prefer one creditor, or other person having a claim upon him, above another; but, by making a general assignment, he may, if he desires, denude himself of this power. But if he choose to make a general assignment, he must conform to the statutory limitations of that instrument. If he choose to make a special assignment, he still has throe months in which to change his mind and merge that into a general assignment, if such special assignment was by him made under the particular circumstances named in the statute.
Obviously, then, it becomes á very important matter to determine in a given case what constitutes an attempt to make a general assignment within the Act of 1881. This is to be ascertained from the face of the instrument. If the paper, on its face, purports to -be a general assignment (Hays v. Covington, 16 Lea, 262 and 267), or if it otherwise appear upon its face by necessary 'intendment .to be such (Lookout Bank v. Noe, 5 S. W. Rep., 433), or if it purports to convoy all the debtor's property for the benefit of creditors, then it must be measured by the rules that govern such instruments, and stand or fall accordingly.
Li the case we are now considering all doubts
The provisions which we have hut now been considering set forth the effect of a general assignment when truly and legally such, all of which provisions are new, and were grafted upon the law of general assignments as it previously stood in this State.
We now come to consider the new features which the statute-has added to the proper execution of the instrument — the schedule and the oath.
Heretofore nothing was needed to effect the due execution of such an instrument except proper conveying words, a general description of the property conveyed, a declaration of trust, signature, acknowledgment, delivery, and registration. This was the instrument which was amended so as to require the additional fonualities of a schedule and an oath. Tinder this, and like instruments prior to the statute of 1881, a very general and meager description would, under all circumstances, suffice, with t'he qualification that all its imperfections might, in the majority of instances, he cured by parol proof. This is illustrated by a series of cases running through Galt v. Dibbrell, 10 Yer., 146, 152; Barker v. Wheelip, 5 Hum., 329; Overton v. Holinshade, 5 Heis., 686, and culminating in Atwood v. Brown, 1 Tenn. Leg. Rep., 59; in which
This was the state of the law when the Act of 1881 was passed. Can it be doubted that the Legislature intended, if not to eliminate, certainly to supplement this lax rule so far as it was operative upon general assignments? Beyond question, before this act, a conveyance in trust of all the grantor’s undivided interest in all the real estate of his father, wherever situated, would have been good. McGavock v. Deery, 1 Cold., 265. It would still be good so far as the Statute of Erauds affects the question. But would-it be good in a general assignment under the Act of 1881 ? Certainly as to the conveying part of the deed — yes. But would it pass the crucial test of the “inventory or schedule?” Suppose the language should he repeated in the schedule — “ all the undivided interest of the undersigned in all the real estate of his father wherever situated ” — would that furnish any such information as a schedule is designed to furnish ? Why have a schedule if the generality
We are of opinion that the description of the stock of goods in this schedule falls clearly within the authority of Rosenbaum v. Moller, 1 Pickle, 653, although the estimated value of the stock is not stated.
The choses in action present a more difficult question. In Rosenbaum v. Moller, supra, the schedule contained a list of the persons indebted to the assignor, with a statement of the amount due by each. Here the specification is, “also all notes and accounts due me.” This, standing alone, would be clearly bad; but it is followed by the statement: * * “A description of said notes and accounts will be found in my books and invoices in said store, which books and invoices are embraced in my assignment, and to which I refer for a minute and detailed description thereof.”. Does this reference cure the defects? We are clearly of the opinion that it does not as to the notes. The reference should be to the notes themselves and their place of deposit. We think mercantile accounts may be properly described by reference to particular > mercantile books, accompanied with a statement of where the books may be found. We think the designation here — “books
It is suggested in argument that Mundmger’s offer in the schedule — “if required, I will make this Exhibit A more full” — ought to rebut any presumption of fraud arising from its vagueness. We do not concur in this view. If it was within his power to supply fuller information, as the offer indicates, he should have furnished that information before the instrument was filed. The schedule must be complete when it becomes a part of the assignment.
It is urged that Mundinger made as complete a schedule as he was able in view of the pending attachment proceedings. It is by no means true that one cannot make a general assignment because his property is held under adverse proceedings, as in case of the levy of attachment or execution. Such property may be sufficiently described by a direct and clear reference to the proceedings and the officer’s levy. Ro such reference appears in this schedule, nor is any such explanation offered in the bill as excusing the defectiveness of the schedule.
There is one other grave defect in the schedule. It closes with the statement: “I own no other property save that named, except my household
From these considerations we are constrained to declare the schedule fatally defective.
The insufficiency of the oath is settled by the principle of Lookout Bank v. Noe, 2 Pick. (5 S. W. Rep., 434). In that case it is said:
“ The oath should be that the inventory is full and complete, showing all the property of the debtor; and this should be reduced to writing in the form of an affidavit, and signed by the debtors, or one of them, in a ease like that before us. There might be a case in which a simple affidavit to the truth and correctness of the inventory would be sufficient'; but this is not such a case for two reasons: First, the. inventories do. not recite, in so many words, upon their face, that they contain full and complete statements of all the property of the assignors; and, secondly, there is no affidavit that the statements therein made are true.”
In the case at bar no affidavit is attached to the schedule, nor is the averment in the schedule sufficient to dispense with it. Standing alone, the
That the simple signature of the assignor to the schedule, with the jurat of the Clerk appended, will not meet the demands of the statute, was districtly ruled in Lookout Bank v. Noe, supra.
But it is insisted that all imperfections of the schedule are in every case cured by that clause of Section 4 which reads: “ The trustee or assignee shall he entitled to any other property of the debtor not embraced in the assignment and not exempt from execution;” and it is said that, therefore, no harm can come of a defective or meager schedule, because all the debtor’s property will go under this clause, whether named or not. This contention overlooks both the true purpose of the schedule, which has been above laid down, and also the true office of this particular clause. It is a recognized rule of construction that where a general clause in an instrument of conveyance is followed by special words in accord therewith, the grant will be limited ■ to the special matter; and it has been repeatedly held under this rule that “a conveyance of all property of every description,
It was to avoid the force of this rule that the clause in question was inserted in the statute. The particular kind of instruments which formed the subject of the statute — general assignments of all a debtor’s property for the benefit of creditors —in connection with Sections 2 and 3, fully marked out the scope of the legislation. But the danger was that the provisions of Section 4 touching the schedule, standing alone, would, under the rule above quoted, narrow that' scope to the terms of the ‘schedule. To prevent this construction, the added words were introduced into the statute. Such we hold to be the true purpose of that clause of Section 4.
But the decisions of sundry States having statutes more or less like our own are pressed upon the attention of the Court in support of the proposition that a defective schedule or oath will not avoid the assignment, and that these requirements are merely directory, and should be construed liberally, and a deficient execution aided in the interest of creditors to secure an equal distribution of the debtor’s assets. These views have been presented in able and elaborate ai-guments, and the Court has examined with care the authorities and reasoning relied upon. These, however, are
These are very grave results to be accomplished by the single act of the debtor; and whether it be held that the proposed “contemplation” shall rest wholly within the mind of the debtor and upon his statement or be subject to countervailing and independent proof, and whether it be held that the knowledge and purposes of the debtor alone should be passed upon or that the knowledge and motives of the creditor should be likewise considered, the Court should be sure that it has before it the particular instrument designed by the Legislature.
Furthermore, by the rigid holding that the schedule and affidavit are absolutely essential to the validity of the instrument, such certainty and symmetry are lent to the subject as could not be otherwise gained; and the question of what is and what is not a valid general assignment is placed beyond doubt, and so is removed the distressing uncertainty that has prevailed among the
Moreover, the^ Court, under the guise of a liberal construction, cannot so minimize the plain provisions of a statute as to practically destroy their efficient operation, and so say that the Legislature did not intend that its command should be obeyed; and for a stronger reason this is true, when the requirement is that a particular thing be done, and when this requirement is a new graft upon an t>ld system, and one of the most strongly marked of all the new features introduced. It is the duty of the Court to enforce this law as it is found upon the statute-book, and if it be a good law its beneficent results will more clearly appear; if it be a bad one its character will, be the sooner manifest, and relief can be craved of that body whose duty it is to make new laws and to mend old ones.
Ror can any just inference be based, as inti
The question already considered being decisive of the case, it is unnecessary .to notice others made in the .argument and in the briefs of counsel.
The Chancellor sustained the demurrer and dismissed the bill, and his decree is, in all respects, affirmed.