Hanson v. Metcalf

• Decision Date: 03 April 1891
• Citation: 48 N.W. 441,46 Minn. 25
• Parties: Peter Hanson v. Oscar M. Metcalf, Garnishee
• Court: Minnesota Supreme Court

48 N.W. 441

46 Minn. 25

Peter Hanson v. Oscar M. Metcalf, Garnishee

Supreme Court of Minnesota

April 3, 1891

Appeal by Oscar M. Metcalf, (substituted for Hamlet Stevens,) garnishee, from a judgment of $ 4,657.36, entered in the district court for Meeker county, pursuant to order of Powers, J.

Judgment reversed.

M. B Koon and E. A. Campbell, for appellant.

U. L Lamprey, for respondent.

OPINION

Vanderburgh, J.

The plaintiff is a creditor of the late firm of M. J. Flynn & Bro., a partnership composed of M. J. Flynn, who died January 3, 1889, and the defendant Daniel Flynn, and duly recovered a judgment in his favor for the amount of his claim on the 18th day of December, 1889, against the defendant Daniel Flynn, as surviving partner. In May, 1889, Daniel Flynn, in his capacity of surviving partner, and also as an individual debtor, claiming to be insolvent, voluntarily made an assignment in pursuance of the insolvent law, partnership property in his hands having been previously attached in a suit against him as surviving partner. The assignee, who is the garnishee in this proceeding, qualified and took possession of the assigned property, including the partnership and individual assets of the assignor, and interposes the assignment as a defence to the plaintiff's application for judgment against him as garnishee. The question involved here is the alleged invalidity of the assignment.

The assignment, on its face, purports to be made in behalf of the partnership, -- that is to say, by "Daniel Flynn, as surviving partner of M. J. Flynn & Bro.," and by "Daniel Flynn," party of the first part, and Hamlet Stevens, the garnishee herein, as party of the second part; and transfers all "the lands, tenements, goods, chattels, choses in action, claims, demands, property, and effects of every description belonging to the party of the first part, whether the same be and appear in the name of M. J. Flynn, or M. J. Flynn & Bro., or Daniel Flynn, or otherwise, for a full and more definite description of which reference is hereby made to the inventory or inventories thereof to be made and filed under this assignment as provided by law, except such property as is by law exempt from execution, * * * in trust for the uses and purposes following, * * * after providing for the expenses of the execution of the trust:" "(3) To pay and discharge in full, if the residue of said proceeds be sufficient for that purpose, all the debts and liabilities now due or to become due from said party of the first part to all his creditors, who shall file releases of their claims and debts against the said party of the first part, as by law provided, together with all interest due and to become due thereon. And if the residue of said proceeds shall not be sufficient to pay said debts and liabilities and interest in full, then to apply the same, so far as they will extend, to the payment of the said debts and liabilities and interest proportionally to their respective amounts, and in accordance with the statute in such case made and provided. And if, after payment of all costs, charges, and expenses attending the execution of said trust, and the payment and discharge in full of all the said lawful debts owing by the said party of the first part, there shall be any surplus of the said proceeds remaining in the hands of the party of the second part, then (4) to repay such surplus to the party of the first part, his executors, administrators, or assigns." By the party of the first part is meant Daniel Flynn and Daniel Flynn as surviving partner, and he brings into the assignment, for disposition in the insolvency proceedings, his individual and partnership assets for the purpose of winding up the partnership affairs, and settling its debts and liabilities as well as his own, and procuring a discharge of his partnership and individual liabilities in so far as it may be done in the proceedings.

1. The first objection to the validity of the assignment is that it was not properly acknowledged. The insolvency act (Laws 1889, c. 30, § 1) provides that the "assignment shall be made, acknowledged, and filed in accordance with and be governed by the laws of this state relating to assignments." The assignment in this instance is executed by "Daniel Flynn" and by "Daniel Flynn, surviving partner of M. J. Flynn & Bro." The certificate of acknowledgment recites that "Daniel Flynn," without further recital or description, personally appeared before the notary, and acknowledged the same "to be his free act and deed." The objection is that it is defective in not showing or certifying that it was acknowledged by him "as surviving partner" also. But the instrument was executed by but one and the same person. It shows on its face what was intended to be conveyed thereby, and the purposes thereof. The acknowledgment is the proof of its execution; and where the certificate identifies the party who alone executed the deed, and affirms that he personally acknowledged its execution, it must be interpreted to be for the uses and purposes disclosed by the instrument itself, and the omission of matter of description is not fatal. 1 Devl. Deeds, § 507; Dail v. Moore, 51 Mo. 589; Williams v. Frost, 27 Minn. 255, (6 N.W. 793.)

2. Another objection to the validity of the assignment is that it does not transfer all the partnership property. A large amount of real estate stands in the name of the deceased partner, which, in equity, belonged to the partnership and is partnership assets; and the assignment is assailed on the ground that the survivor's deed of assignment did not and could not include and transfer this property. But the deed expressly assumes to convey the same and in case of insolvency it is clearly liable to be applied to the payment of the partnership debts, and the equitable title thereto must be deemed to be in the surviving partner for such purpose, and passes to his assignee in insolvency. It is now well settled that a surviving partner may make an assignment of the partnership estate, and this will include...