Turner v. Jaycox

By the Court, Johnson, J. The plaintiff claimed the goods in question as the assignee of the copartnership firm [172] of N. Pulver & Co., which, assignment was made and the trusts thereby created accepted on the 4th'of April, 1861. The defendants are judgment creditors of the said firm, and took the goods by virtue of an attachment in' an action in their favor, on the 22d of April, 1861, which they subsequently caused to be sold upon an execution issued on the judgment in the action. The plaintiff took possession of the goods immediately upon the execution of the assignment to him, and continued in possession up to the time they were seized by virtue of the attachment. The property taken was the stock of goods in the store of the assignors, which they owned prior to the assignment. The defendants claimed that the goods were not assigned by the instrument of assignment, and that the plaintiff acquired no title thereby, because such goods were not included or specified in the schedule annexed, and referred to in the assignment. They also claimed that the assignment was wholly void, for the reason that the assignors had, by the assignment, provided for the payment of their individual debts out of any surplus remaining after payment of all partnership debts. In regard to the first point, the language of the instrument, after granting the lands and tenements, is as follows : “And all the goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evidences of debt, and property of every name and nature whatsoever of the said parties of the first part, more particularly enumerated and described in the schedule hereunto annexed, marked schedule A.” On referring to schedule A, it appears to contain only a description of the real estate assigned, and a list of the accounts and notes due to the said firm. Ho merchandise or other chattels are enumerated or described in such schedule. That a general assignment in this language, and for the purposes specified in the instrument in question, operates to transfer to the assignee property not mentioned in the schedule annexed, is fully settled in the case of Platt v. Lott, [173] (17 N. Y. Rep. 478.) It is quite apparent that there was no intention on the part of the assignors, of limiting the assignment to the real estate and choses in action mentioned in the schedule. The reference to .the schedule, in the body of the instrument, was evidently not for the purpose of restriction or limitation upon the previous language, and should not be so construed. Reference was to be had to the schedule, not for the purpose of ascertaining what particular things or species of property were conveyed to the assignee, but for the purpose of identifying that which was conveyed, merely. The assignment is as full and general as language could well make it, and such was the .plain intention of the assignors. In respect to the provision for the payment of the private and individual debts of the assignors, out of. the residue of the net proceeds remaining after the payment of all the debts of the partnership, I am wholly unable to discover in it any evidence of an intention to hinder, delay or defraud creditors. The argument, as far as I am able to understand it, seems to be in brief this: that it operates in effect like an assignment, by two insolvent individuals of their separate property to a single assignee, for the purpose of paying each equally the debts of the other, as well as his own. In such a case, where it appeared upon the face of the assignment that each assignor was insolvent, and that the property assigned by each was unequal in value, and the debts of each unequal in proportion, the assignment would, I think, upon its face afford pretty conclusive evidence of an intention to hinder, delay" and defraud creditors, and could not be upheld. But it will scarcely do, I think, to infer the existence of all these facts, when nothing of the kind appears upon the face of the instrument. ' The facts might, probably, be established by proof aliunde, and the assignment avoided in that way, but I do not think they are to be presumed,, in thé absence of all evidence. The legal intendments, I suppose, are all in favor of the validity of assignments, the same as of other instru [174] ments. The only case cited by the defendants’ counsel in favor of this novel proposition is that of Smith v. Howard, (20 How. Pr. R. 121,) which seems to have turned upon some such principle, although the two cases are not precisely analogous. That was a case decided in the superior court of the city of Buffalo, and is not binding as an authority upon this court beyond the force of the reasons assigned for the decision. But with all deference to that very respectable court, the reasons do not strike me as at all conclusive. Indeed a material fact must have been assumed, which did not appear upon the face of the instrument and was not proved. But without pursuing, that decision, for the purpose of reviewing it, it is sufficient to say that this is clearly no such assignment as that, was assumed to be. It only appears on the face of the assignment in question that the partnership was insolvent, and there is nothing to show that either of the partners was so individually. It is an assignment of the joint property only, as is manifest from the entire tenor and scope of the instrument; and I think there is no presumption of law that either of the partners was individually insolvent, or that their interests in the partnership property, or the amount of their private debts, were unequal. [Monroe General Term, December 1, 1862. The other points were not raised upon the trial or at the special term, and are, I think, untenable if they had been. The nonsuit was therefore properly set aside, and the decision of the special term must be affirmed. Johnson, Welles and James C. Smith, Justices,]