5 Rawle 221 | Pa. | 1835
The opinion of the court was delivered by
It is difficult, at a glance, to reconcile the mind to the decisions in support of these conditional assignments in any case; or comprehend how a 'conveyance which puts the debtor’s property beyond his creditor’s reach, except on terms prescribed by himself, can be any thing else than an act to ‘ delay hinder and defraud’ within the purview of the 13 Elizabeth. On the other hand, where the object is in truth distribution and not hindrance, the supervening delay being ,but incidental to the process, it is not easy to point out a defect in the argument on which they have been sustained. The basis of it is the admitted right which every debtor in failing circumstances has,,to prefer one creditor to another: for as an assignment on valuable consideration and for a lawful purpose as payment of debts is, necessarily passes the property out of the debtor, the consequence indicated as apparently objectionable, is unavoidable though there be even an express reservation of a trust for the debtor in the unconsumed surplus, which is no more than the law would imply without it, such surplus being liable in his hands as if it had never passed from him. The difficulty is to understand how he may lawfully manage his right to give a preference in such a way as to secure an advantage to himself in the release of his person and future earnings. And the solution of it is found in the arbitrary control over the order of payment allowed
But the principle of preference on terms of compromise, is not to be indulged so far as to, legalise the reservation of a portion of the effects for the debtor. In M’Allister v. Marshall, 6 Binney, 338, it was held that an assignment of all the effects upon a stipulation to re-convey apart for the benefit of the debtor’s family, is void for the part to be re-conveyed. It was not necessary to pronounce it void for the whole as no more than the part re-conveyed'was in contest; but nothing is clearer than that a contract fraudulent in part by the pi’ovisions of a statute, whatever be the abstract effect of fraud in other cases, is void in the whole. The principle has since been applied in Hyslop v. Clark, 14 Johns. 465, to the very case of an assignment in trust for payment of debts. Under the 13 Elizabeth, then, what is the difference between a conveyance of the whole on terms of returning a part, and a conveyance of a part in the first
Now an assignment of partnership effects is a partial one where-ever the debtor has separate property. The terms of the present, embrace “ all manner of machinery, stock, goods, chattels, debts, accounts, claims, and all other things whatsoever of the said William P. Jenks and company, as well real as personal, and of what nature, kind or quality soever,” which evidently has respect but to the joint effects. And this assignment of the partnership effects is on condition that the creditor execute by a day certain, “a full and suffi
Decree in each case affirmed.