Farwell v. Cohen
Decision Date | 10 June 1891 |
Citation | 138 Ill. 216,28 N.E. 35 |
Parties | FARWELL et al. v. COHEN. |
Court | Illinois Supreme Court |
Appeal from appellate court, third district.
A petition was filed in the county court of Vermillion county, Ill., by John V. Farwell & Co., praying that an order be made restraining Daniel Cohen from disposing of property while he held it in trust for certain creditors of George Silverman, assignor, without an order of court, petitioners not having been made beneficiaries under such assignment, and that he be removed as assignee, and some suitable person appointed. Section 7 of the act confers jurisdiction upon the county court to supervise execution of assignments. Silverman made a conveyance to Cohen for the benefit of a few creditors mentioned in the instrument, but did not annex such inventory or list of such creditors. On hearing, Cohen claimed that the county court had no jurisdiction to act in the premises, as the conveyance did not purport to convey all of the grantor's or mortgagor's property; therefore the instrument was not one of assignment, within the meaning of the act. Cohen was removed from his trust, and appealed to the appellate court, which reversed the order. 29 Ill. App. 277. Plaintiffs appeal to this court.
For dissenting opinion, see 32 N.E. 893.
Tenny, Hawley & Coffeen, E. R. E. Kimbrough, Smith & Pence, and Kraus, Mayer & Stein, for appellants.
J. B. Mann and Moses & Pam, for appellee.
John V. Farwell & Co. filed in the county court of Vermillion county a petition, verified by affidavit, wherein it was stated that they were creditors of George Silverman, of that county, and that he was indebted to them for goods sold and delivered in the sum of $1,498.58; and that on December 18, 1887, said Silverman executed and delivered to Daniel Cohen an instrument of writing as follows: ‘Know all men by these presents, that I, George Silverman, of the city of Danville, county of Vermillion and state of Illinois, in consideration of the sum of thirteen thousand four hundred and sixty-nine and seventy-hundredths dollars, to me in hand paid by H. B. Claflin & Co., M. Cohen, D. Cohen, Simon and Rosenbloom, Mayer Singer, and Sarah Silverman, the receipt whereof is hereby acknowledged, and in consideration of the sum of one dollar in hand paid to me by Daniel Cohen, do hereby sell, assign, transfer, and set over unto said Daniel Cohen all and singular the following goods and chattels, viz.: All the stock of dry goods and carpets, boots and shoes, store fixtures, and every other article of property in and about the store-room known as ‘No. 115 East Main Street,’ in the city of Danville and state of Illinois, in trust for the uses and purposes following, that is to say: Whereas, I am indebted to the persons hereinafter named in the amount hereinafter mentioned, which are evidence by sundry promissory notes, as follows: The petition further stated that the stock of goods so sold, assigned, and transferred to Cohen composed all the property and estate of any value belonging to Silverman, and that the latter at the time of executing the instrument was, and still is, wholly insolvent; that the liabilities of Silverman exceeded $40,000; and that said goods were insufficient to pay such liabilities, their value being not to exceed $20,000. It was alleged that the transfer was in fact and in law an assignment for the benefit of creditors to Cohen as assignee, with preferences in favor of the persons in the instrument named, and that thereby Cohen became assignee of Silverman, and subject to all the duties and liabilities of an assignee; further, that he had seized the property, and held possession of the same, but instead of administering the same according to law, under the supervision and direction of the court, intended to wholly ignore the court, and administer the property solely for the benefit of the persons named in the assignment as beneficiaries, without regard to the rights of petitioners and other creditors of Silverman, and without complying with any of the provisions of the laws of Illinois regulating assignments, and in pursuance of such intention had given notice that he would sell said property on December 26, 1887, etc. It was also alleged that Cohen was not a resident of the state, and not a proper person to act as assignee; that he was one of the preferred creditors in the assignment, a relative of the assignor, and that he would not act impartially in the matter; that he was acting solely in the interest and under the direction of the insolvent and the preferred creditors; and that he had filed in the court no bond as assignee, nor any schedule or inventory of the property assigned, and that he did not intend to do so until compelled by the order of court. The prayer of the petition was that an order be entered restraining Cohen from disposing of the property without an order of court, and requiring him to file a schedule of the assigned property, and submit to the jurisdiction of the court, and that he be removed as assignee, and some suitable person appointed to administer the estate under the direction of the court, and that a citation issue against Silverman, etc., and for other relief.
The answer of Cohen to the petition was as follows: ...
To continue reading
Request your trial-
Black v. Palmer
...particular form of writing is necessary so long as the intention of the parties may be inferred from the instrument (see Farwell v. Cohen, 1891, 138 Ill. 216, 28 N.E. 35; 32 N.E. 893, 18 L.R.A. 281; 2 Perry, Trusts and Trustees, sec. 589 (6th Ed., 1911)), the instrument must be one to which......
-
People ex rel. Quisenberry v. Ellis
...right of any one interested is lost or prejudiced by the failure to perform the act or by the time when it is performed. Farwell v. Cohen, 138 Ill. 216, 28 N. E. 35,32 N. E. 893,18 L. R. A. 281; Cooley's Const. Lim. 78. The substantial purpose of that section was accomplished by omitting th......
-
Harbaugh v. Costello
... ... Hanchett v. Waterbury, 115 Ill. 220, 32 N. E. 194;Farwell v. Cohen, 138 Ill. 216, 28 N. E. 35, and 32 N. E. 893,18 L. R. A. 281. It thus being a state insolvency law, the proceedings commenced under it after ... ...
- Farwell v. Cohen