Bock v. Perkins

• Decision Date: 15 May 1886
• Citation: 28 F. 123
• Parties: BOCK, Assignee, etc., v. PERKINS, U.S. Marshal, and others.
• Court: U.S. District Court — Northern District of Iowa

28 F. 123

BOCK, Assignee, etc., v. PERKINS, U.S. Marshal, and others.

United States Circuit Court, N.D. Iowa, Eastern Division.

May 15, 1886

Fouke &amp Lyon, for plaintiff.

Henderson Hurd & Daniels, for defendant.

Before BREWER, LOVE, and SHIRAS, JJ.

BREWER J., (orally.)

This is an action brought by an assignee to recover a stock of goods seized by the defendant, as United States marshal, under an attachment against the assignor. The property was not named in the schedule to the assignment. The statutes of Iowa provide, substantially, that a general assignment shall carry all the property of the assignor; that no schedule shall be necessary, and that any mere imperfection or omission in the schedule shall not vitiate the assignment, or prevent it from carrying the entire property; and it is claimed that the instrument in question was a general assignment; and that although the specific property in controversy was not named in the schedule, it passed by the terms of the assignment. Of course, a partial assignment conveys only the property described, and the question is whether this was a partial or general assignment. Of course, a partial assignment conveys only the property described, and the question is whether this was a partial or general assignment. It is headed 'General Assignment.' It recites that whereas, the assignor is justly indebted in considerable sums of money and has become unable to pay the same in full, and is now desirous of making a fair and equitable distribution of his property among all of his creditors; and then goes on to grant, convey, and assign 'all the lands, and all the personal property of every name and nature whatsoever, of the said party of the first part, more particularly enumerated and described in the schedule hereto annexed, marked 'Schedule A,' or intended so to be.'

Now, the reasons in favor of holding this as a general assignment are-- First, the parties call it such; second, the assignor asserts his desire to distribute his property among all his creditors; third, it reads that he conveys all his lands, and all his personal property; and, further, in the affidavit to the schedule he swears that this is a true statement and account of his estate. The argument on the other hand is that the broad language in the first part of the description is restricted by that which follows. He assigns all the lands, and all the personal property, specifically enumerated and described, and this particular property in controversy is not described or enumerated. Just the same as though a man should convey all his lands in the city of Des Moines,--the broad expression in the first part of the description, 'all his lands,' would necessarily, by a familiar rule, be limited by the second part of the description, 'in the city of Des Moines;' so here, all his lands, and all his personal property, as specifically enumerated and described, shows that he intended to convey, not all, but only those enumerated and described.

The question is not one free from doubt. Of course, no one questions the general rule that we are to take the description as a whole, or that general terms in one part are limited and qualified by any specific language used thereafter. Especially is that rule applicable in a case like this, where the property not enumerated and described is property of proportionately large value and great amount. He has enumerated on one page of this schedule his lands; on another page or pages certain accounts; but, though being a merchant in possession of a stock of goods, he does not mention that stock of goods in any way.

Now for the intent of the party, which is controlling, we are to look at all parts of the instrument. When a party makes that kind of a description, to-wit, all the property enumerated in an attached schedule, and we find omitted from that schedule a large element of his property,-- something which it could not, in the nature of things, be believed he would accidentally omit,-- can we come to any other conclusion than that he intended to omit it, and that he intended to convey only that which he had specifically enumerated? If a man having a herd of cattle and a colt should make an assignment of 'all his property, as specified in his schedule,' and in the schedule mention simply the colt, would not we be irresistibly forced to the conclusion that his omission of that which was the main element of his property (his herd of cattle) was in pursuance of an intention to omit it? Of course the omission of some minor item would not carry such inference; but when a man sets out to make an assignment, and takes pains to make a schedule of that which he assigns, and omits that which is the great bulk of his property, and conveys all his property as enumerated and described in the schedule, does not the omission carry with irresistible force the conviction that he did not intend to include in his general assignment that which he...