Farwell, Ozmun, Kirk & Co. v. Brooks

MITCHELL, Jv The only question is as to the validity of the deed of assignment (Exhibit A of the complaint) purporting to have been executed for the benefit of creditors pursuant to the provisions of the insolvent law of 1881.2 The only authorized assignment under this statute is of all the debtor’s property not exempt from execution. Hence an assignment by partners of partnership property exclusively is upon its face partial, and not general. To be valid, it must appear on its face that it assigns, not only the partnership property, but also all of the nonexempt individual property of each of the partners. May v. Walker, 35 Minn. 194, 28 N. W. 252; In re Allen, 41 Minn. 430, 43 N. W. 382; Thompson v. Winona Harvester Works, 41 Minn. 434, 43 N. W. 383. [186] The assignment under consideration is partial, and hence invalid, because it does not assign, or purport to assign, the individual property of W. M. Brooks, one of the partners. Conceding, without deciding, that under the decision in Security Bank v. Beede, 37 Minn. 527, 35 N. W. 435, this assignment, if executed by both partners as individuals, would have passed their separate as well as their partnership property, yet the fact remains that it has not been so executed by W. M. Brooks. The execution of the deed by the other partner, Ai Brooks, individually, could, of course, have no effect to pass the separate property of W. M. Brooks. Neither could the signature of the firm name of “Brooks & Co.” by W. M. Brooks have any such effect; for while it is true that a partnership is not a person distinct from its members, and the only office of a firm name is identification and abbreviation as an agreed sign or adopted symbol to represent and include the individual members of the partnership, yet the partnership name has the additional signification that a partnership act is denoted by its use. Hence there would be no ground for claiming that a deed of the tenor of this instrument, with merely the firm name affixed, would pass the separate property of either partner; and the addition of the words “by W. M. Brooks” adds nothing. It merely indicates that the firm name was signed by W. M. Brooks. Neither is there any ambiguity in the form of the execution of the instrument which wo.uld admit of explanation by parol evidence. There is no analogy in this respect between deeds conveying property and instruments, such as promissory notes, creating a liability on the part of the firm. In the latter case, each partner being the agent of the other as to all matters within the scope of the partnership business, both are liable, whichever executes the obligation. The main dependence of counsel for the garnishee is the fact that W. M. Brooks acknowledged that he executed the instrument, “as his free act and deed, and the free act and deed of Ai Brooks and W. M. Brooks, copartners as Brooks & Go.” It is urged that this shows that he adopted the words “by W. M. Brooks” as his individual signature. If the signature was on its face ambiguous, and subject to explanation by parol evidence as to the capacity in which he executed it, there might be some force in this argument; but there is no such ambiguity, and the acknowledgment of the execution of a deed cannot enlarge or change the effect of the instrument itself as [187] a conveyance. It has been the settled doctrine of this court from the-outset that deeds of assignment for the benefit of creditors must be-executed in accordance with the statute, and must show on their-face, without resort to any extraneous evidence, that they convey all the nonexempt property of the debtors. Public policy requires that, this rule be strictly adhered to. Judgment reversed. Footnotes [2] Laws 1881, c. 148. See G. S. 1894, §§ 4240-4254.