Duvall v. Raisin

• Citation: 7 Mo. 449
• Parties: DUVALL AND OTHERS v. RAISIN AND OTHERS.
• Decision Date: 31 May 1842
• Court: Missouri Supreme Court

7 Mo. 449

DUVALL AND OTHERS

v.RAISIN AND OTHERS.

Supreme Court of Missouri.

May Term, 1842.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

CROCKETT, for Plaintiffs.

BLAIR & GANTT, for Defendants.

NAPTON, J.

This was an action of assumpsit by Duvall, Keighler & Co., against H. H. Raisin & Co. An attachment was sued out, and Montgomery Blair and Edward E. Archer summoned as garnishees. Blair and Archer denied all indebtedness, except such as might be considered as arising from a deed of assignment, made by H. H. Raisin & Co. to them as trustees, by which all the property of said H. H. Raisin & Co. was conveyed to them for the benefit of certain preferred creditors. This assignment was made 24th April, 1841, between Henry H. Raisin, Wiare D. Parsons and John Ward, of the first part; Edward E. Archer and Montgomery Blair, of the second part; and the several other persons named in the instrument, creditors of H. H. Raisin & Co., of the third part. The assignment purported to convey all the property of H. H. Raisin & Co. to Blair & Archer, giving them full power and authority to dispose of the same upon a special trust; that after paying the expenses attending the assignment, the trustees should apply the moneys arising therefrom to the payment of several preferred creditors, enumerating them. This deed was executed by the parties of the first and second part, the assignors and the trustees, and Blair admitted that he had received under this deed property and effects to the value of five thousand dollars, which he held for the trust purposes specified in said deed. It was specified in the deed that schedules of the property and of the liabilities of the assignors were annexed to the deed; but these schedules had not been made out, and were not, in fact, attached to the instrument. Upon this state of fact the judgment of the court of common pleas was for the garnishees, and to reverse this judgment a writ of error is sued out. There are several objections made to the validity of this assignment, which we will proceed to consider.

1st. It is insisted that the deed is void, because it was not executed by the creditors. Had the creditors, named in the assignment as parties, been required to execute it before they could take the benefit of its provisions, their assent to the deed could not have been signified in any other mode. Ganard v. Lord Lauderdale, 3 Sim. R. 1. But where there is no stipulation for a release, or any other condition in the instrument, which is not for the benefit of the creditors, their assent will be presumed. 2 Story Eq. 302. Drake v. Rogers & Shrewsburry, 6 Mo. R. 320. Deeds of this description are frequently made for the benefit of persons who are absent, and where they are clearly for the benefit of such persons, and no terms are imposed, no expression of the assent of the preferred creditors has been held necessary, in order that the legal estate should vest in the trustee. Brooks v. Marbury, 2 Wheat. R. 97. ^(a)

2nd. The persons preferred in this assignment were indorsers, and because there is no evidence that the notes of which they were indorsers had been paid, it is argued that they are creditors. The indorsers stand in the position of securities for the assignors, and it has never been questioned but that money or property could have been placed in their hands to indemnify them against loss. Nor is any reason perceived why property may not be transferred to a trustee for their benefit. To hold an indorser not to be a creditor, would certainly be an effectual mode of nullifying all assignments in which preferences are given, as in all, or nearly all of them, the preferred creditors are the indorsers of the debtors, and it...