Coots v. Chamberlain

• Citation: 39 Mich. 565
• Court: Michigan Supreme Court
• Decision Date: 31 October 1878
• Parties: Walter H. Coots v. Marvin H. Chamberlain, assignee

39 Mich. 565

Walter H. Coots v. Marvin H. Chamberlain, assignee

Supreme Court of Michigan

October 31, 1878

Submitted October 23, 1878

Error to Superior Court of Detroit.

Trover. Defendant brings error.

Judgment affirmed with costs.

George W. Bates and Henry M. Cheever for plaintiff in error. If the schedules of property assigned for the benefit of creditors tend to limit the description of the property conveyed, they must be referred to in deciding what passes; and if not attached till after the execution of the assignment, no property mentioned in them passes to the assignee, and the assignment is fraudulent and void as to subsequent creditors levying attachments before the schedules were annexed Burrill on Assignments [3d ed.], 169; Moir v. Brown 14 Barb. 39; Spring v. Strauss, 3 Bosw. 607; Kircheis v. Schloss, 49 How. Pr., 284; Mims v Armstrong, 31 Md. 87; Wood v. Rowcliffe, 5 Eng. L. & E., 471; Wilkes v. Ferris, 5 Johns. 335; Driscoll v. Fiske, 21 Pick. 503; Price v. Haynes, 37 Mich. 489; Rundlett v. Dole, 10 N. H., 462; Clap v. Smith, 16 Pick. 247; contra, Platt v. Lott, 17 N. Y., 478; Nye v. Van Husan, 6 Mich. 345; if property is withheld from an assignment with fraudulent intent, it avoids the assignment, Wilson v. Forsyth, 24 Barb. 120; Livermore v. Northrup, 44 N. Y., 111; Smith v. Mitchell, 12 Mich. 191; Loeschick v. Baldwin, 38 N. Y., 326; and if property is fraudulently conveyed before making the assignment, the assignee cannot reach it, Leach v. Kelsey, 7 Barb. 470; Brownell v. Curtis, 10 Paige 210; Browning v. Hart, 6 Barb. 91; Vandyke v. Christ, 7 W. & S., 373; Jones v. Yates, 9 B. & C., 532; Van Heusen v. Radcliff, 17 N. Y., 580; Estabrook v. Messersmith, 18 Wis. 545.

Atkinson & Atkinson for defendant in error. An assignment vests the property at delivery whether the schedules are perfected or not, Hollister v. Loud, 2 Mich. 310; Turner v. Jaycox, 40 N. Y., 472.

OPINION

Marston, J.

The questions raised in this case grow out of and relate to the validity of a general assignment made by Francis J. Chamberlain, February 12th, 1878, for the benefit of his creditors, to Marvin H. Chamberlain, the plaintiff in this action.

The assignee upon the same day the assignment was made, accepted the trust and took possession of a stock of groceries thereunder. On the following day plaintiff in error, as sheriff, by virtue of a writ of attachment, wherein Francis J. Chamberlain, the assignor, was defendant, levied upon this stock.

Although a schedule was referred to in the assignment for a more full and particular enumeration of the property assigned, none was attached thereto until after the levy, or until the 15th of February, and the assignment, although signed, witnessed and delivered and accepted on the 12th of February, was not acknowledged until the 18th of February.

It appeared upon the trial that many years previous to the time of the assignment, the assignor was the owner of certain real estate in the county of St. Joseph; that the title to a part of this property, on account of certain litigation, passed out of the assignor; that the father of his wife advanced to her sufficient money to purchase back these lands, which was done and the conveyance thereto taken in her name, where it remained until shortly before her death when she conveyed the property to her husband, with an oral understanding that the conveyance was for the benefit of their daughter, then a minor.

This real estate remained in the name of Francis J. Chamberlain and was used and treated by him in all respects as his own; he borrowed money and gave a mortgage thereon to secure payment of the same.

On February 11th, the day previous to the assignment, he deeded this and certain other property, part of the same farm, subject to the encumbrances thereon, to his brother Alvinzie H. Chamberlain. The only consideration for this conveyance, was one made by Alvinzie H. to the wife of Frances J., of a lot in the city of Detroit, with the understanding that when the daughter of his deceased wife came of age, this lot should be conveyed to her, as a fulfillment of his agreement made with her mother in reference to the farm property at the time it was conveyed to him. The farm conveyed to Alvinzie H. on February 11th was worth $ 5240, subject to a mortgage thereon of $ 2000. The lot in Detroit conveyed to his wife was valued at $ 2000. The stock of groceries and fixtures which passed under the assignment were valued at nearly $ 2400. That his liabilities were from $ 2000 to $ 4000, about one-half of which was past due.

From this statement of facts it is supposed the legal questions raised will be understood.

The assignee when examined as a witness was asked: "Would you have taken it [the assignment] if you had known that he [the assignor] had given a deed of this farm the day before, as he did?"

This question was objected to and excluded. It was wholly immaterial what the witness would have done under the circumstances. The validity of the assignment could not be made to depend upon what the assignee may afterwards testify he might or would have done, had facts, not then made known to him, been brought to his attention. If he in good faith accepted the trust, for the benefit of the creditors, no opinion or conclusion which he might afterwards form or come to, could in any way affect the validity of the assignment made.

It is next said that the court erred in admitting the assignment in evidence, and in charging the jury that it was sufficient upon its face to transfer the property in question to the plaintiff, provided it was made for the purpose intended by it.

The particular objection urged was that by the terms of the assignment it purported to have attached to it for its completeness and as a part of it, a schedule defining particularly and distinctly the property conveyed, while no such schedule was attached until after the levy.

The language of the assignment in this case was not only broad and general, but it was clear and distinct, and would have passed and transferred the title to all and singular the property of the assignor, whether a schedule had or had not been attached thereto. The object of referring to a schedule in this case, was as expressed, for a more full and particular description of the property, not by way of limitation, but to enable the assignee to ascertain the more readily, and take charge of the property owned by the assignor, and which would pass under the assignment whether enumerated in the schedule or not. The clear intention of the parties...