McMillan v. Knapp

Hall, Justice. The assignment in this case was adjudged invalid, because the schedule of assignor’s effects was not a full and complete inventory and schedule of “ all the assets of every kind held, claimed or owned ” by him at the execution of the deed, and because it was not verified, as required by the act of 28th of September, 1881. The property left out of it was the right of redemption which the assignor had in certain premises conveyed for the security of a debt he owed, and which right of redemption he surrendered to the party holding the deed, shortly after the execution of the assignment. 1. This omission from the schedule was fatal to the assignment, as we this day held in Turnipseed et at. vs Schaefer et al. 2. The affidavit was that the schedule contained (i a true, complete and perfect ” inventory of “ all the property of which ” the assignor was i( then possessed, both real and personal,” “ including ” his “ stock in trade, accounts, prom [177] issory notes, executions and real estate, all of which is in schedule marked Exhibit A, and household and kitchen furniture.” It will be seen at a glance that this is r.ot the affidavit required by the statute, and that the enumeration of the several kinds of property contained in the schedule excludes that which was left out of the assignment. It goes only to the property actually in his possession and under his control at the time the assignment was made; the oath required by the statute is more comprehensive. The party is required to swear that the schedule attached is a full and complete inventory and schedule of all the assets of every kind held, claimed or owned by him at the execution of the deed of assignment. The words underscored are conspicuously and it may be suspiciously absent from this affidavit. The safer rule in such cases is to follow the words of the act, and to comply substantially, if not literally, with all its conditions and requirements; otherwise the deed may and ought to be set aside. Judgment affirmed.