Turrill v. McCarthy

Waterman, J.- 2 The deed of assignment to Haag purported, in terms, to be made under the provisions of chapter 7, title 14, of the Code of 1873, which relates to general assignments for the benefit of creditors. In the body of the instrument it is recited that conveyance is made of all property of every kind, “except such as is by law exempt from execution.” Then follow the usual provisions of a deed of general assignment with relation to distribution of the proceeds to creditors. The instrument also contains this language: “Annexed hereto, marked 'Exhibit A/ and' made a part hereof, is an inventory of all such property and estate. * * *” Such a schedule was attached, but the property in question is not described or mentioned in it. [685] Two claims are made by appellants with relation to the deed of assignment: First, that it was intended only as a partial assignment, and not meant to convey the property in dispute; second, that, as F. R. McCarthy was a married man and the head of a family, such property was exempt from execution, and was reserved to the debtor by the terms of the conveyance. A debtor may make a partial assignment of his property for the benefit of some or all of his creditors. Buck-Reiner Co. v. Chase, 85 Iowa, 296. But this instrument in .terms purports to. be a general assignment of all the debtor’s property for the benefit of all his creditors. The fact that the schedule did not describe this property is unimportant, for the statute expressly states that such inventory is not conclusive, but “the assignment shall vest in the assignee title to any other property belonging to the debtor at the time of making the assignment.” Section 2117, Code 1873. See, also, Le Moyne v. Braden, 87 Iowa, 739. We do not think the reference to the schedule was intended to limit the property conveyed to what is therein described. This construction would make it contradict the previous and plain terms of the deed. Father, we take it, the schedule purports to 'enumerate all the debtor’s property, and fails to do so. There was evidence given of some talk about this property between the assignor and his attorney at the time the deed of assignment was made. But this was only as to whether it was exempt. Taking the debtor’s version of what was said, and there is nothing to show that he intended to retain this property if it was not exempt from execution; and, if it was so exempt, it was saved to him by the reservation in the instrument. 3 II. We come next to the claim of exemption. This claim is not made under the statute, but is founded on the fact that the property was used in the service of the postal department of the general government; it being plaintiff’s duty, as a postmaster of the third class, to furnish such equipment at his own expense. Being [686] thus used, it is said such property could not be taken on execution without interfering with the mails, and thus committing an offense against the laws of the United States. It will be readily seen that the fact that the debtor was the head of a family is a matter of no significance. If the plea of exemption is good on the ground stated, it would be equally available to an unmarried man. This court has held that property which cannot be levied upon is not subject to a judgment lien, though the provision forbidding levy is found outside the regular exemption statute. City of Davenport v. Peoria Marine & Fire Ins. Go., 17 Iowa, 281; Loring v. Small, 50 Iowa, 271. But these cases are not in point, for by no statute of this state is properly such as that in dispute made exempt from seizure on legal process. Neither does the federal statute exempt it further than to say, at most, that in taking it the business of the postal department shall not be interfered with. The question before us, however, is not how an execution can be levied on this property, but what was the meaning of the reservation by the debtor in the deed of assignment ? He had a right to sell this property. Hid he do so, to the assignee? is the query to answer. The phrase “exempt from execution”we construe as covering property given by law to the debtor individually through motives of public policy, and not property which is merely protected while in his official custody. Property exempt from execution is such as the law means to give a debtor as against his creditors. It is something which he is protected in holding for his own benefit, and not merely for the advantage of the business in which he is engaged. We know of nothing in the official character of a postmaster which entitles him, as against creditors to hold more than would be awarded him in his private, personal capacity. Let us suppose that in a federal court the government of the United States had secured a money judgment against this postmaster; could it not have had execution against this property ? -If it could, there was no exemption. In our opinion, while this prop [687] erty "was perhaps incidentally protected, it was not exempted. It was protected, it at all, only against a purchaser or creditor, we think, who by taking possession would disturb or hinder the business of the office; but it surely would not follow that the owner could not sell, or that he was limited in his choice of a purchaser to his successor in office. III. As we have already said, plaintiff, by amendment to his petition, asked that the sale to him be rescinded for fraud practiced by the seller. On this issue the trial court held against him, and, we think, was justified in so doing by the testimony. 4 5 IY. Plaintiff also finds fault with the judgment in several respects: First, it is said that the assignee was entitled to the property, and not to a share of the note. Ilaag might have a standing to complain of this, but he does not appeal. Again, it is said John McCarthy does not show himself entitled to any "part of -the proceeds of the property. On this point, also, we quite agree with the finding of the trial court. At all events, we think, as plaintiff has been awarded the property for what he agreed to pay, he is not justified in complaining of the disposition made of the price. Lastly,. it is said John McCarthy asked no judgment on his note, and the court was not warranted in giving him one. A reference to the judgment entry which is above set out will show that no judgment was entered on- this note. The respective shares thereof of the assignee and John McCarthy were fixed, and the maker of the note ordered to pay the same. Then follows a provision that, if the maker of the .note fail in such payments, the note shall be returned into court, and judgment rendered-thereon. The validity of this last provision we have no occasion now to determine. Certainly under the issues it was proper to fix the shares of such parties.- — Arrirmed.