Lesher v. Getman

• Decision Date: 02 July 1881
• Citation: 9 N.W. 585,28 Minn. 93
• Parties: A. F. Lesher, Assignee, v. J. E. Getman, Sheriff, and others
• Court: Minnesota Supreme Court

9 N.W. 585

28 Minn. 93

A. F. Lesher, Assignee, v. J. E. Getman, Sheriff, and others

Supreme Court of Minnesota

July 2, 1881

Appeal by defendants from a judgment of the district court for Dodge county, where the action was tried before Brown, J., (acting for the judge of the 5th district,) a jury being waived.

Judgment reversed and new trial ordered.

Rogers & Rogers and A. J. Edgerton, for appellants.

Jones & Gove and C. H. Benton, for respondent.

OPINION

Mitchell, J.

In October, 1878, one Hageman executed to plaintiff a deed of assignment of all his property, for the benefit of his creditors. Plaintiff accepted the trust, qualified, and took possession of the property. Subsequently, the defendant Getman, as sheriff, under several executions against Hageman levied upon the property in question, and took it from the possession of plaintiff. Plaintiff then brought this action for damages for such alleged wrongful taking. Defendant justifies under the executions, and alleges that the assignment referred to was made by Hageman with intent to hinder, delay and defraud his creditors, in that it was made for the purpose of obtaining a settlement with his creditors and of forcing them to settle and compromise their just claims against him for a small per cent. thereof. This allegation of fraud was denied in the reply, and raised the principal issue in the case.

The action having been tried without a jury, the court made and filed its findings, the following of which is the only one here material:

"The assignment, the acceptance on the part of the assignee, the giving of the bond, and all of the acts of the parties thereto, and in relation to the transaction, as well as the purport of the instruments themselves, indicate that it was intended by the parties to be a transaction under and pursuant to the laws of this state in relation to assignments for the benefit of creditors; and I find that the transaction was so intended to be. But I further find that, prior to and at the time of making the assignment, the said Hageman had been led to believe that by making it he could the more readily procure a compromise with his creditors, and, from the evidence, I am impressed with the belief that his supposition that the assignment could and would be used to effect that object was at least one of the chief considerations which operated upon his mind to induce him to make it, and I so find the fact to be; but whether he expected to gain this end by compulsion, or by other inducements, does not so clearly appear. I find nothing in the evidence, however, indicating or tending to show that the assignment was not of all his property (not exempt from execution) or that his property was not fully and completely turned over for the benefit of all his creditors, to be shared by them pro rata."

From this finding of fact, the court found, as a conclusion of law, in substance, that this assignment, having been made under chapter 44, Laws 1876, (Gen. St. 1878, c. 41, §§ 23-33,) "to protect the creditors of assignors and to regulate the duties of assignees," the intent of the assignor in making it was immaterial, because, under the provisions of this act, the assignee, by accepting the trust and giving a bond, became an officer of the court, and the property assigned was under the control and management of the court, and any intent on the part of the assignor to hinder and delay his creditors, or to compel or induce a compromise, was instantly defeated by the very act of making the assignment. For this reason he held the assignment valid, and ordered judgment for the plaintiff. From the judgment so entered defendants appeal to this court.

We are clearly of opinion that the learned court below adopted an erroneous view of the object and effect of the statute of 1876. It is in no sense a statute authorizing the execution of assignments for the benefit of creditors. The very title of the act indicates this fact. The power to make such assignments is not derived from or dependent upon this statute. They are the voluntary acts of the debtor. No statutory authority can exact them, and, when made, they partake of the nature of a contract. The statute simply recognizes them as an existing mode of conveyance, and assumes to regulate the mode of executing them, and to define the duties of assignees, and thus give creditors more effectual means of control over the acts and proceedings of both assignor and assignee, but leaving the question of their validity (except so far as expressly changed by the statute itself) to be determined...