Hartzler v. Tootle

• Decision Date: 31 October 1884
• Citation: 85 Mo. 23
• Parties: HARTZLER, Assignee, v. TOOTLE et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 23

HARTZLER, Assignee,

v.TOOTLE et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cass Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

Comingo & Slover and Wooldridge & Daniel for appellants.

(1) The instruction given for plaintiff was wrong. Tiemon v. Molliter, 71 Mo. 513; Phelps v. McNeeley, 66 Mo. 554; Tenney v. Johnson, 43 N. H. 144; Ferson v. Monroe, 21 N. H. 462. (2) Plaintiff's instruction should have been refused and defendants' first one given. Shackleford v. Clark, 78 Mo. 492; Hillaker v. Clark, 65 Mo. 604; Caldwell v. Scott, 54 N. H. 418; Weaver v. Weaver, 46 Ib. 191; Benson v. Ela, 35 Ib. 420; Menagh v. Whitwell, 52 N. Y. 146; Burtus v. Tisdall, 4 Barb. 571; Conroy v. Woods, 13 Cal. 626; Williams v. Gage, 49 Miss. 777; Linford v. Linford et al., 28 N. J. Law, 113. (3) By the provisions of the alleged assignment, Cummins reserves to himself an interest in the property he attempted to convey, which the law forbids. When he attempts to except from the assignment “such articles of property, and such real estate as are by law exempt from execution,” he reserves, or attempts to reserve, to his own use, property which, in contemplation of law, he held in trust for the creditors of Cummins & Handley, among whom were the defendants. See authorities, supra; also State ex rel. Billingsley v. Spencer et al., 64 Mo. 355, and citations. Defendants' other instructions, especially the second and fourth, should have been given. At the time of the levy of defendants' attachment, there had not been a valid assignment, nor one that could be thereafter perfected as against their rights acquired thereby. R. S. 1879, sec. 362, p. 55; Juliand v. Rathbone, 39 N. Y. 369.

W. J. Terrell and Railey & Burney for respondent.

(1) The court properly declared the law in the instruction given for plaintiff. (2) The reservation of property exempt from execution is not inconsistent with a deed of assignment for the benefit of creditors. Burrill on Assignments (3 Ed.) p. 263; Garnor v. Frederick, 18 Ind. 507. (3) The requirement of Revised Statutes, section 362, that the assignor make a statement in writing, verified by affidavit, at the time of the execution of the deed of assignment and file the same for record with the deed is not mandatory as regards time. Deaver v. Savage, 3 Mo. 139; Duvall et al. v. Blair et al., 7 Mo. 449; Hardcastle v. Fisher, 24 Mo. 70; Bates v. Ableman, 13 Wis. 644; Steinlin v. Halstead, 52 Wis. 289; Clark v. Mix, 15 Conn. 177; Turner v. Jaycock, 40 N. Y. 470; Woodward v. Marshall, 22 Pick. 468 and 473; Hollister v. Loud et al., 2 Mich. 310; Coots v. Chamberlain, 39 Mich. 565 and 568; Stamp v. Case, 41 Mich. 267; Meeker & Perkins v. Sanders & Shaw, 6 Ia. 60; Juliand v. Rathbone, 39 N. Y. 369, has been overruled and is not the law. Juliand v. Rathbone, 39 Barb. 97; Van Vleet v. Slauson, 45 Barb. 317; Evans v. Chapin, 20 How. Pr. 289; Barbone v. Everson, 16 Abb. Pr. 366; Hardmann v. Bowen, 39 N. Y. 196.

DEARMOND, C.

Jasper N. Cummins and Lewis B. Handley, composing the firm of Cummins & Handley, carried on business as merchants at Green City, in Cass county, for a number of years. The firm became largely indebted, among their creditors being Tootle, Hanna & Company, the defendants herein. Handley became the partner of Cummins in 1880, and sold out to him in November, 1881, between the first and the tenth days of the month, it seems, for about $1,100, Cummins to take assets and assume liabilities. On November 21, Cummins and wife gave a deed of trust on a partnership lot on which a grain house was situate, and on another lot to secure the payment of about nine hundred and thirty-five dollars to Handley, the latter having taken certain notes belonging to the firm for the balance of what he was to get for his interest in the firm property. December 1, Cummins made an assignment to his son-in-law, Isaac H. Liston, for the benefit of his creditors. On December 3, Tootle, Hanna & Company, in a suit in the Cass circuit court against Cummins & Handley, attached the property assigned by Cummins to Liston. S. Z. Hartzler was appointed by the circuit court assignee of Cummins, Liston being unable to give a bond. Thereupon Hartzler qualified as such assignee, and interpleaded for the property assigned to Liston, and afterwards seized in attachment. The case made on the interplea was tried by the court without the intervention of a jury, and judgment given for the interpleader, to reverse which the attaching creditor appealed to this court.

Appellants argue that the pretended sale of Handley to Cummins was fraudulent, and the deed of trust from Cummins a part of the same intentional fraud. The firm, it seems, enlarged the field of their operations, built a grain house and embarked in the grain trade. And although at the wind-up the assets were found to be considerably less than the liabilities, yet the assumption is allowable on the whole record that neither knew much about the firm affairs, and hence that there was not honesty and good faith in these transactions is not an inevitable conclusion. There is nothing in the record establishing the existence of the fraud in fact attributed to Cummins and Handley. This is not the first instance of country store-keepers, expanded into grain dealers, finding great expectations ruinously discounted.

The decision of the case must hinge upon the one declaration given for the interpleader, upon which a number of questions arise. If it was not error to give this declaration it was not error to refuse those asked by defendants. It is this:

“If the court, sitting as a jury, believes from the evidence that Jasper N. Cummins was, on and prior to the first day of December, 1881, indebted to the various parties described in evidence, and insolvent; that in good faith, for the sole purpose of paying off his debts and liabilities, he made a general assignment of all his goods, chattels, property and effects, subject by law to the payment of his debts, to Isaac M. Liston, assignee, for the use and benefit of all his creditors aforesaid; that said Liston, in good faith, for the sole purpose of carrying into execution the duties and trust devolving upon him by virtue of said assignment, did enter into possession of said assigned property, as assignee aforesaid, prior to the levy of the attachment herein, and was proceeding in good faith, under said assignment, to take an inventory of the goods, chattels, property and effects of said Cummins, and was in the actual possession thereof, as such assignee, proceeding to execute the trust aforesaid, before and at the time of the levy of the writ of attachment in this cause, upon the property aforesaid, then the court should find for the interpleader, S. Z. Hartzler.”

Under this declaration, the only one given, the finding of the court disposes of all issues of fact and all arguments upon the tendency and weight of the evidence, etc., leaving for consideration here certain questions of law only. The deed of assignment to Liston, after reciting that Cummins was unable to pay his debts in full, and desired to make a fair and equitable distribution of all his property among his creditors, conveys, etc., to Liston and his assigns forever “all and singular the lands, tenements and hereditaments * * * wheresoever the same may be situated, and which lands are intended to be described in schedule ‘A’ hereto annexed, and to pass to said assignee under this assignment, whether correctly described or not, except homestead of said party of the first part, and also all goods, chattels, rights and credits, judgments, bonds, choses in action, evidences of debt, and property of every name and nature whatsoever of the said party of the first part, and the books, vouchers and securities relating to the same and which are intended to be described and enumerated in a schedule of same hereto annexed as exhibit ‘B,’ and all to pass to the said assignee, whether described or not, except such articles of property and such real estate as are by law exempt from execution. To have * * * in trust for the use and benefit of all the creditors of the said party of the first part, and to be held and cared for, controlled and disposed of according to the statutes of Missouri concerning assignments for the benefit of creditors. And it is further specified that if said schedule ‘B’ is not filed with or annexed to this deed of assignment, then the inventory filed with the circuit court of said county shall describe and specify said personal property * * *.”

This deed was executed and acknowledged December 1, and filed for record December 5. No schedules were attached to it till December 8, when Cummins made one under oath and in it described and valued the real and personal property “as assigned.” This schedule contained over five hundred dollars' worth of property, in addition to that formerly belonging to the partnership, and exclusive of a homestead valued at six hundred dollars, put into the schedule and claimed as exempt. Prefixed to the schedule is the following: “This statement not verified or completed until December 8, 1881, because of sickness and being unable to ascertain at time of execution of deed of assignment, so as to make a careful estimate of value of said goods and chattels.” The verification is “* * * that the above and foregoing is a...