Mansur & Tibbetts Implement Co. v. Wood

Bunn, C. J., (after stating the facts.) The deed of assignment, in the general description of the personal property, except evidences of indebtedness, sufficiently points out the property to make its identity easily determined. At least, the description is just such as is usual in the cases of tangible personal property, and the notes and accounts are minutely set forth in the schedule attached. Burrill on Assignment, § 138, after reference in the preceding section to cases which sustain the position of appellant’s counsel in this case as to reference to the schedule, has this to say : “In the earlier cases in New York this doctrine was applied, but in the later cases the principle of construction, prohibiting a false or erroneous addition from vitiating what had been previously sufficiently and fully described as a portion of the subject-matter intended to be transferred by the instrument, has been regarded ■ as the correct rule of construction in such cases. Thus, in the case of Turner v. Jaycox, 40 N. Y. 470, where the transfer was of ‘all and singular the lands, tenements and hereditaments situate, lying añd being in the state of New York, 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 mature whatsoever of the said parties of the first part, more particularly enumerated and described in the schedule hereto annexed, marked Schedule A,’ and no. allusion was made in the schedule to any of the tangible personal property of the assignors, it was held that such property passed under the previous general description.” The- facts of the case cited in the text, and the facts in the case at bar, render the authority more precisely in point than it is ordinarily possible to find in the search for precedent. To the same effect is the ruling in the case of Clark v. Few, 62 Ala. 243. So also is the ruling in the case of Knefler v. Shreve, 78 Ky. 297. As to time of sale. This disposes of the first objection raised. The second contention, that the deed provided for the sale of the property within 120 days from the date thereof, instead of ‘‘within 120 days from the giving of the bond by the assignee, as required by statute,” is not well grounded in this case, because, as a matter of fact, as we gather from the argument of counsel, and inferentially at least from the record, the deed of assignment was executed and filed for record on the 21st November, 1894, and the bond of the assignee was executed and filed on the same day. So the error complained of was at most a mere lapsus pennce, neither injuring any one, nor calculated in any sense to work an injury or to do violence to the statute. Evidently, in this matter, there was no intention to avoid the directions and mandates of the statute ; and so we cannot sustain the second objection. As to reservation of property. The third objection rests mainly on the idea that, this being- a general assignment of all the debtor’s property for the benefit of his creditors, the withholding- of the homestead property, especially that portion which was in excess of the legal homestead, was a fraud upon creditors. In so far as this homestead property is concerned (both as to the legal homestead and the excess), this was not an assignment of all the debtor’s property, for this property was specifically and expressly reserved from the operation of the assignment. There is no rule compelling one to convey all his property in a deed of assignment. If he pretends to do so, and intentionally does not do so, and thereby misleads and deceives his creditors to their hurt, or any of them, then the case may be different. In this case every act done appears to have been done above board, and the objection cannot be sustained. We see no objection to the giving of the second mortgage on the livery property to Kerr some time before the assignment, nor to his foreclosure of the same, nor to his taking possession of that property under the mortgage; and the appropriation of the proceeds of the sale under the second mortgage, after satisfying the senior mortgage, and the conveyance of the legal homestead and reconveyance back of the excess of the homestead lot, present no issues for our consideration in this proceeding, if such could be presented in any case. Seeing no substantial error in the proceedings or judgment of the court below, the same is affirmed.