Newman v. Black

• Decision Date: 18 November 1895
• Citation: 73 Miss. 239,18 So. 543
• Parties: H. & C. NEWMAN ET AL. v. J. M. BLACK ET AL
• Court: Mississippi Supreme Court

18 So. 543

73 Miss. 239

H. & C. NEWMAN ET AL. v. J. M. BLACK ET AL

Supreme Court of Mississippi

November 18, 1895

FROM the chancery court of the second district of Hinds county HON. H. C. CONN, Chancellor.

The property of the debtor not included in the assignment was the following: Two cows, worth $ 25; two cows, and their calves worth $ 35; 150 pounds of pork, worth $ 7.50; fifty bushels of corn, worth $ 25; a mule, worth $ 75; a wagon, worth $ 18 a check for $ 25; $ 150 in money; his household and kitchen furniture, and a third interest in 168 acres of land, and his homestead in Bolton, Miss. worth $ 1,000.

The values attached to the above items of property are those given to them by the debtor in his testimony. He declined, on the ground of inability, to estimate the value of his household and kitchen furniture, but referred to it as "a little bit," and refused to swear first that it was worth over $ 100, and then that it was worth over $ 50. He stated that he claimed all of the property that was exempted in his favor. His testimony did not fix the value of his interest in the 168 acres of land save as indicated by the fact that it was purchased under a deed of trust securing a debt of $ 45. He had never had possession of the land, but his title had never been disputed save by the complainant in the pending proceeding. The opinion states all of the other facts relating to the controlling question discussed therein.

Section 1963, code of 1892, provides that the following, among other items of property, owned by every head of a family, shall be exempt from seizure under execution or attachment: "(a) Two work horses or mules, etc.; (b) two cows and calves . (g) two hundred and fifty bushels of corn; . . . (i) five hundred pounds of pork; . . . (k) one wagon, etc.; . . . (r) household and kitchen furniture not exceeding two hundred dollars in value."

Under § 1971, code 1892, the exemptionist, residing in any city, town or village, is allowed the land and buildings owned and occupied by him as a residence, not to exceed in value $ 2,000, and personal property, to be selected by him not to exceed in value $ 250, or the articles specified as exempt to the head of a family.

The provisions of chapter 8, code 1892, require that all general assignments shall be filed in the chancery court of the proper county, and the trusts thereby created administered in said court; and by § 124, code, contained in said chapter, it is provided that, unless the specified data shall appear on the face of the assignment, the assignee shall file, in said court, with said assignment, schedules, under oath, containing certain data; and that in case of his noncompliance with such requirement, the assignment shall be void as to all preferences contained in it.

The assignment in the case at bar did not contain the specified data, nor was it, or the schedules mentioned, filed in the chancery court; and thus arose for determination the question of whether the assignment was a partial one or a general one, and subject to the provisions of the code chapter. The court below held that it was a partial assignment, and dismissed the bill of complaint, and complainant appealed.

Affirmed.

E. E. Baldwin, for the appellant.

The assignment was a partial one in name only, shaped to get the benefit of the decision in Jones v. McQuien, 71 Miss. 98. It conveyed substantially all of the debtor's unexempt property, and was therefore a general assignment, and the preferences contained therein were void for noncompliance with the statute governing general assignments.

Nugent & McWillie, on the same side.

A general assignment is one having the following characteristics: (1) A transfer of the debtor's property, (2) a trust created, (3) an appropriation of the property to the payment of his debts, (4) full power in the trustee to sell any or all of the property to fully execute the trust reposed in him. Ginther v. Richmond, 18 Hun (N. Y.), 232; Burrill on Assignments (6th ed.), pp. 3 and 4. "An assignment of all of one's property, for the benefit of all of one's creditors, is clearly a general assignment." Dana v. Lull, 17 Vt. 390. "A general assignment must include substantially all a man's property, and a partial assignment must omit some substantial portion of the property, and cannot be made to rest upon a mere colorable omission." Mussey v. Noyes, 27 Vt. 474; Longmire v. Goode, 38 Ala. 577. An exception of a trifling amount by accident or design, will not alter the character of the conveyance in this respect. Burrill on Assignments (6th ed.), p. 124.

In Mussey v. Noyes, supra it was remarked that an assignment which includes all one's attachable property, and which is intended to close up one's business, and does so at once, is clearly a general assignment, and although the assignment does not include absolutely, but only substantially, all of the debtor's property, the portion omitted being inconsiderable. See, also, Bishop v. Hart's Trustees, 28 Vt. Bank v. Noe, 2 Pick., 21; United States v. Clark, 1 Paine, 629; United States v. Unites States Bank, 8 Rob (La.), 262; McGilliard v. Krug, 76 Ind. 28; Dubose v. Carlisle, 51 Ala. 590.

In United States v. Clark, supra, although the omitted portion was as much as $ 7,000, the assignment was held to be a general one; and in Dubose v. Carlisle, supra, the same result was reached, although the assigned property was worth but $ 20,000, and the omitted portion as much as $ 2,000, or one-eleventh of the whole.

The statute whereby all preferences contained in any general assignments are avoided in case of noncompliance with its terms, does not limit that class of instruments to such as may be designated general assignments by the makers thereof. Ch. 8 (§ 124), code 1892. The law does not suffer men by the employment of convenient nomenclature, to determine the nature of their acts; and, if the debtor has transferred...