State v. Adler

• Decision Date: 04 February 1889
• Citation: 97 Mo. 413,10 S.W. 824
• Parties: STATE, to Use of LEVY, v. ADLER et al.
• Court: Missouri Supreme Court

10 S.W. 824

97 Mo. 413

STATE, to Use of LEVY, v. ADLER et al.

Supreme Court of Missouri.

February 4, 1889.

1. ASSIGNMENT FOR BENEFIT OF CREDITORS — STATEMENT OF ASSETS.

Under Rev. St. Mo. § 362, an assignor for the benefit of creditors must file with the deed of assignment a verified statement setting forth the nature and value of the estate and effects assigned. Held, where the assigned property consisted of manufactured clothing, fixtures, and accounts, difficult of exact valuation, that a statement of value at "about $3,500" was sufficient.

2. SAME — PRIOR FRAUDULENT ACTS OF ASSIGNOR.

Where an assignment is made for the purpose of having the property of the assignor administered under the law, prior disconnected fraudulent acts of the assignor will not vitiate it, when it does not appear that the assignee was in any way a party to the frauds.

3. SHERIFFS AND CONSTABLES — ACTION ON BOND — PLEADING — JUDGMENT.

In an action by an assignee on a sheriff's indemnifying bond, to recover the value of property taken from him under an attachment, where the petition sets out the bond and assigns the breach, when there is a trial of the issues upon the answer, the court may, under Rev. St. Mo. 1879, § 3683, grant any relief consistent with the case made by the plaintiff, although the petition prays for a judgment for damages sustained only, and not for the penalty of the bond.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Suit by the state for the use of one Levy, assignee of A. Spiro, against William Adler and others, on a sheriff's indemnifying bond, to recover the value of property taken from him under an attachment. Defendants appeal from a judgment for plaintiff.

Nathan Frank and Dyer, Lee & Ellis, for appellants. Krum & Jonas, for respondent.

BLACK, J.

A. Spiro made a voluntary assignment of his property to F. Levy for the benefit of his creditors. The deed of assignment was executed and recorded on the 18th November, 1882. On the 20th of the same month, Adler and others, composing the firm of Adler & Co., sued Spiro in attachment, and levied upon the assigned property then in the possession of the assignee. The assignee made claim for the property, and therefore the defendants in this suit gave the sheriff an indemnifying bond. 2 Rev. St. 1879, p. 1555. This is a suit by the assignee upon that bond, to recover the value of the property taken from him. Defendants deny ownership of the property in the plaintiff, and tender the further issue that Spiro made the assignment with intent to hinder, delay, and defraud his creditors.

1. Defendants objected to the deed of assignment, when offered in evidence by the plaintiff, on the ground that the affidavit attached thereto was not in conformity with the statutes. Section 362, Rev. St., makes it the duty of the assignor to make and file with the deed of assignment a verified statement "setting forth the general nature and full value of the estate and effects assigned." The same section makes it the duty of the assignee to give bond in double the amount of the assigned effects within three days; and if the appraisement, thereafter to be made, shall be greater than the value given in the statement, then he must give another bond. In the present case, the statement, duly verified, after giving a general description of the stock of goods and property, concludes: "All which property is of the value of about thirty-five hundred dollars." The validity of the assignment does not depend upon the statement, and, if none had been made and filed with the assignment, the omission would not invalidate the deed of assignment. Hartzler v. Tootle, 85 Mo. 23. But this statement is a fair compliance with the law. It is plain to be seen that the principal object of the statement is to furnish a guide for the amount of the bond to be given by the assignee in the first instance. Here the property consisted of manufactured clothing, unmanufactured jeans, and of fixtures and accounts, and it would have been difficult to give an exact valuation. The value is stated to be about $3,500, and that is sufficient.

2. Spiro, being called...