McCandless v. Hazen

• Decision Date: 18 May 1896
• Citation: 98 Iowa 321,67 N.W. 256
• Parties: MCCANDLESS v. HAZEN, SHERIFF.
• Court: Iowa Supreme Court

98 Iowa 321

67 N.W. 256

MCCANDLESS

v.HAZEN, SHERIFF.

Supreme Court of Iowa.

May 18, 1896.

Appeal from district court, Pottawattamie county; H. E. Deemer, Judge.

Plaintiff, as assignee of one August Meyer, brings this action of replevin, for certain personal property, against the defendant, as sheriff of Pottawattamie county, Iowa, who held the same by virtue of a levy under a writ of attachment issued out of the office of the clerk of the district court of said county in a case pending in said court, wherein Sears, Frizzel & Co. were plaintiffs, and August Meyer was defendant. It appears that said Meyer had on August 17, 1893, made a general assignment for the benefit of creditors, and appointed plaintiff his assignee. Said assignee qualified, and took possession of the assigned property; and thereafter, on August 20, 1893, said writ of attachment was sued out, and the goods taken from the assignee thereunder. Prior to the commencement of this action a proper notice of ownership was served upon the defendant. The defendant, in his answer, alleges that said August Meyer and his brother conspired together for the purpose of cheating and defrauding said Sears, Frizzel & Co., and other creditors, and that said August, without consideration, conveyed to his brother Theodore Meyer books of account and accounts to the amount of $1,000, and all the real estate and personal property said August was possessed of; that said assignment was made fraudulently and without consideration, and for the purpose of cheating and defrauding his creditors, and, in pursuance of such fraudulent conspiracy, plaintiff accepted said assignment. The cause was tried to a jury, and at the conclusion of the evidence the court sustained a motion directing a verdict for plaintiff. Defendant excepted and appeals. Affirmed.Turner, Smith & Cullison, for appellant.

Benjamin & Preston, for appellee.

KINNE, J.

1. Appellant's first contention is that August Meyer was not insolvent, and hence could not make a valid assignment for the benefit of his creditors. Our statute reads, “No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims.” Code, § 2115. Meyer was, as the evidence clearly shows, unable to meet his just obligations according to the usage of trade, and unable to proceed with his business without making some general arrangement with his creditors. Under our holdings, this constituted insolvency, so as to justify the making of an assignment for the benefit of creditors. Savery v. Spaulding, 8 Iowa, 240...