McCandless v. Hazen

Kinne, J. 1 I. Appellant’s first contention is that August Meyer was not insolvent, and hence could not make a valid assignment for the benefit of his creditors. Our statute reads: “No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims.” Code, section 2115. Meyer was, as the evidence clearly shows, unable to meet his just obligations according to the usage of trade, and [323] unable to proceed with his business without making some general arrangement with his creditors. Under our holdings, this constituted insolvency, so as to justify the making of an assignment for the benefit of creditors. Savery v. Spaulding, 8 Iowa, 240. See State v. Cadwell, 79 Iowa, 473 (44 N. W. Rep. 711). 2 II. Exception was taken to the ruling of the court admitting in evidence the notice of ownership, and an assignment of error is based thereon. As, however, said assignment is not argued, we do not consider it. 3 4 III. It is contended that the facts show that the assignment was fraudulently made, with the intent of especially benefiting the assignor’s brother and another creditor. A day or two prior to making the assignment, August Meyer did transfer certain property to his brother, to secure him against liability as a surety. This he had a right to do, especially as the transfer was made in part in fulfillment of a promise made to the brother, at the time he became surety, that whenever he (Theodore) demanded security, he (August) would give it. Nothing appears from which it can be said that, when August Meyer made these transfers to his brother, he had in contemplation the making of an assignment for the benefit of his creditors. The argument seems to be that by reason of the transfers, and the assignment thereafter made, the brother would reap a benefit at the expense of other creditors. There is no evidence from which it can be said that there was any fraudulent conspiracy between August Meyer and Theodore Meyer, to which plaintiff was in any way a party, or for which he can be chargeable. When the property was attached it was in the custody of the law. Shoe Co. v. Mercer, 84 Iowa, 541 (51 N. W. Rep. 415). The assignment was, on its face, regular, and it could not be collaterally [324] attacked. If Theodore Meyer has, possession of property which in law passed by the assignment, and if, as defendant contends, the assignee has been derelict in failing to attempt to secure said property for the benefit of his assignor’s estate, a very plain remedy is open, under the statute, to compel the assignee to perform his duty. Code, section 2123. The defendant failed to establish his defense. We have not discussed the facts in detail, discovering no good reason for so doing. — Affirmed. Deemer, J., took no part.