Stultz & Blair v. Fleming & Bussey

Simmons, Justice. The court did not err in refusing to set aside the assignment in this case upon the grounds set out in the bill of exceptions. Most of the grounds are mixed questions of law and fact, which it will be necessary for a jury to pass upon under proper instructions from the court, before the assignment can be declared invalid. Upon the questions of pure law made in the record, the court did not err, in our opinion, in refusing to set aside the assignment on these grounds. 1. It is unnecessary, in óur opinion, for the assignors to state in the deed of assignment that they are “ fail- ■ [23] ing or insolvent debtors.” There is nothing in the act which requires them so to state. 2. Nor does it render an assignment invalid if the assignors provide therein for a fixed compensation for the assignee. "Whether that provision is in the deed of assignment or not, the law will allow a reasonable compensation ; and the fact that the law allows such compensation without this provision in the assignment, does not render the assignment invalid when it is provided for in the assignment. If the provision for compensation is unreasonable, it can he reduced bv the court on its settlement with the assignee. If relied upon as a circumstance to prove fraud, it can be submitted to the jury on the trial of that issue. 3. Nor is it necessary, in our opinion, for the assignors, in their schedule of creditors, which schedule they are required by law to file, to describe the nature and character of the debts, and to state therein whether they consists of “ notes or accounts, whether barred or not, whether secured or unsecured.” The act requires that the “ schedule shall set forth in detail the name of, the amount' due to, and the residence of, each of the creditors of the assignor.” It does not require any further- description of the debts. 4. Nor did the court err in refusing to set aside the assignment “ because the assignors failed to include in their schedule of assets the term they owned under the lease from Mrs Horton, administratrix, of the store they occupied, from December 31st, 1888, the date of their failure, to October 1st, 1889, the date of the expiration of the lease.” It appears that the renting of the storehouse was by the year. If it was, the tenant could not sublet the premises without the consent of the landlord. If they had assigned this unexpired term, the landlady might not have agreed to it. She might not have desired the assignee as a tenant. If the renting was by [24] the year, the tenant had no estate in it, and therefore it could not have been a part of the tenant’s assets. The landlady could have ejected the tenant at any time when the rent was due and unpaid. We therefore do not think the assignment was invalid because the assignors failed to put this in their schedule. 5. The assignors had a certain amount of money deposited in bank to their credit. Two days before they failed and made this assignment, they drew checks on the bank for this money, in favor of some of their creditors. It appears that these checks had not been presented and paid when the assignment was made, and that the assignors did not know that they had not been paid. It is contended that the assignment was void because the money was not placed in the schedule as assets. We do not think the failure to place this money in the schedule of assets renders the assignment void per se, under the circumstances. Courts differ as to whether, after checks have been drawn against money in bank, the money belongs to the holders of the checks or to the drawers of the checks. These assignors seem to have taken the former view, and we cannot hold that their deed of assignment is void because of a mistaken view of the law, if their view is wrong. Where able and learned judges, who have devoted their lives to the study of the law, differ upon this question, certainly the act and opinion of unprofessional men cannot be held to be fraudulent when they follow one line of decisions. Of course if this was done for the purpose of defrauding, hindering or delaying the creditors, it would void the assignment. Of this and kindred questions in the case the jury must be the judges, under the evidence and proper instructions from the court. The other questions made in the record were questions of mixed law and fact, and it is unnecessary to decide them now, as they can be determined on the final trial before the jury. [25] 6. Upon a review of the whole case, we think the trial judge made a wise disposition of it. The bulk of the property had been sold prior to the hearing, under interlocutory orders passed before the hearing. In his order disposing of the case, the judge directed that the proceeds of the sale should be placed in bank by the assignee, and not paid out to any one except by order of the court, and that all of the proceeds be held up except $500, which he directed paid as compensation to the assignee, and certain other amounts the salaries of the employés in the store, until the final trial before the jury. This virtually made the assignee the receiver of the court. The court took possession of the whole property or its proceeds, and will retain it until the final trial. We cannot see that the plaintiffs in error are in any way injured by this action of the coui’t, and we see no ground for their complaint of the refusal of the court to appoint a receiver. Judgment affirmed.