21 Kan. 350 | Ark. | 1878
The opinion of the court was delivered by
The only question in this case for our consideration is, whether the voluntary assignment of Luther & Bond of September 25th, 1876, operated as a transfer and conveyance of the individual property of Bond ? I f it did so operate, then White, as assignee, was clothed with all the necessary power to obtain possession of the property, and entitled to it wherever it might have been, or in whosesoever hands. Against such assignment, counsel contend that the use of the word partners therein was intended to designate the capacity in which the assignors were making the assignment, and to limit the assignment to partnership property for the benefit of partnership creditors, and was solely the assignment o'f Luther & Bond, partners, as C. M. Luther & Co. of the partnership property in trust for their partnership creditors. Therefore it did not include the property in dispute, which was the individual property of Bond. We do not think the assignment will bear this construction. It purports to assign all the property of C. M. Luther and Nathaniel Bond, both real and personal, of every kind and description (excepting such as was exempt), and directs the assignee from the proceeds of the sale of such, property and collections of their claims, to pay and discharge in full all and singular the debts due and owing from said C. M. Luther ■and N. Bond, and if the net proceeds are not sufficient for the payment of these debts in full, then- the assignee is required to apply the same ratably and in proportion to the amount of the indebtedness without distinction or preference. The assignment was executed by both Luther and Bond, and their respective wives released all right, title and interest in the real estate thereby conveyed. It is true that in the body of the instrument where appear the names of Luther & Bond, “copartners” or “partners” follow, but these words may be justly treated as descriptive of the persons of the assignors, and not as limiting the assignment to a partial one. Under this view the assignment was general. The partnership effects of the partners and their separate property (not exempt) were conveyed by it. An attempt is made by counsel for plaintiff in error to present the question of the right of an assignee of a voluntary assignment to impeach or set aside a fraudulent gift or transfer of property, but with no special findings and only a general finding, we cannot assume that the court below found that Bond prior to the execution of the assignment had ever parted with the property. The court may have found that there was no gift thereof to the daughter, at least not such a transfer as gave her any title.
The judgment of the district court will be affirmed.