Palmer v. McCarthy

• Decision Date: 10 October 1892
• Citation: 31 P. 241,2 Colo.App. 422
• Parties: PALMER v. McCARTHY, Sheriff.
• Court: Colorado Court of Appeals

31 P. 241

2 Colo.App. 422

PALMER v. McCARTHY, Sheriff.

Court of Appeals of Colorado

October 10, 1892

Appeal from district court, Pueblo county; JULIUS C. GUNTER, Judge.

Action of replevin by W.W. Palmer, as assignee of D.C. Bowne against T.G. McCarthy, as sheriff, to recover the possession of a stock of goods. From a judgment for defendant, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by REED J.:

One D.C. Bowne, engaged in mercantile business in the city of Pueblo, on the 3d day of August, 1889, attempted to make an assignment for the benefit of creditors under the statute of 1885, (1 Mills' Ann.St. c. 9, § 169; Acts 1885, p. 43:) "Any person may make a general assignment of all his property for the benefit of his creditors by deed, duly acknowledged, which, when filed for record in the office of the clerk and recorder of the county where the assignor resides, or, if a nonresident, where his principal place of business is, in this state, shall vest in the assignee the title to all the property, real and personal, of the assignor, in trust for the use and benefit of such creditors. Sec. 170. The assignor shall annex to such assignment an inventory under oath of his estate, real and personal according to the best of his knowledge, with the estimated value thereof, and also a list of his creditors, giving their names, residence, if known, and the amount of their respective demands; but such inventory shall not be conclusive of the amount of the assignor's estate, nor shall the omission of any property from such inventory defeat the assignment or conveyance of the same. Sec. 171. No such deed of general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors shall be valid, unless by its terms it be made for the benefit of all his creditors, in proportion to the amount of their respective claims,"--and in pursuance of such attempt made and executed the following paper: "Know all men by these presents, that I, D.C. Bowne, residing and doing business in the city and county of Pueblo, state of Colorado for value received, do hereby grant, bargain, sell, and convey to W.W. Palmer, of the same place, all of the accounts, debts, dues, notes, bills, bonds, and demands, goods, wares, and merchandise, named and specified in a schedule and inventory to be hereinafter filed, to have and to hold the same to him, the said W.W. Palmer, and to his assigns, in trust only, and to collect, sue for, demand, receive, and recover all such sums of money as may be due, owing, and payable thereon, and to sell said goods, wares, and merchandise as the court may direct, and as shall be for the best interest of all parties, and, after paying all reasonable and proper costs, charges, and expenses out of the proceeds thereof, to pay each and all of my creditors the full sum that may be due and owing by me to them, of which creditors a list, together with a true amount of my indebtedness to them, severally, is shown in a schedule signed by me, and marked 'Schedule A;' and, if the proceeds of said goods, wares, and merchandise and chattels shall not be sufficient fully to pay all and every of my said creditors, then to pay them pro rata, in proportion to the amount due and owing to each of them; but, if the proceeds thereof shall be more than sufficient to satisfy and pay all my indebtedness to my said creditors, then the said W.W. Palmer is to pay and return to me the balance, and if any should be left after paying my said creditors aforesaid, and all costs incurred herein. And I do nominate, constitute, and appoint the said W.W. Palmer our true and lawful attorney, irrevocable by me, and for every purpose connected therewith, to ask, demand, sue for, collect, receive, and recover all and singular such sum or sums of money as now are or may hereafter become due upon, for, or on account of any of the property, effects, choses, or things in action, or demands above assigned, giving and granting unto my said attorney full power and authority to do and perform every act, deed, or thing requisite and necessary in the premises, as fully, to all intents and purposes, as I might or could do if this assignment had not been made, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute may lawfully do in the premises by virtue thereof."

On the 12th day of August, Bowne filed a partial list of creditors with the approximate amount due each, at the bottom of which occurs the following: "Amount of stock on hand, about $35,000." "State of Colorado, county of Pueblo--ss.: D.C. Bowne, who personally appeared before me, J.S. Stewart, county clerk, deposes and says that the facts contained in the foregoing schedule, wherein his liabilities and assets are set forth, are true and correct to the best of his knowledge and belief. In witness whereof, I have hereunto set my hand and seal, this third day of August, 1889. J.S. STEWART, County Clerk. By THOMAS THOMPSON, Deputy. [Seal.]" McCarthy, appellee, was sheriff of Pueblo county. On August 3, 1889, the Central National Bank of Pueblo sued out a writ of attachment against assignor, Bowne. It was by the sheriff levied upon the goods mentioned in the complaint as the property of Bowne. On the same day F.L. Strang & Co. sued out an attachment against the same party, which was by the sheriff levied upon the same goods. On the same date the Pueblo Hardware Company sued out an attachment, which was levied upon the same goods; also, on the same date, James G. Johnson & Co. sued out an attachment, which was levied upon the same goods. On the 5th day of August the suits of the Central National Bank and Strang & Co. against Bowne were settled, and attachments released; but the goods were still held under the attachments of the other parties named. From the 5th to the 14th of the same month, the Newall Bros. Manufacturing Company, Eberhard Faber, the Japanese Fan Company, Koch, Sons & Co., and Edward Scheitlin & Co. commenced suits by attachment in the county court of Pueblo county, which were levied upon the goods which were attempted to be conveyed by the assignment. On August 7th, appellant, as assignee of Bowne, filed his complaint in the usual form, alleging that by virtue of the assignment he was entitled to the possession of the following described goods and chattels, to wit: "A certain stock of leather and millinery goods, now situate in the leather and millinery department of a certain building, known as the 'Bon Marche' building, situate on the corner of Seventh street and Santa Fe avenue, in the city of Pueblo, in said county and state, the same being part of a general stock of merchandise formerly owned and possessed by one D.C. Bowne, and being all the goods situate in the said leather and millinery department of the said Bon Marche building," and that the same were withheld from him by McCarthy. Defendant, McCarthy, answered generally and specifically, first, denying all the material allegations in the complaint; second, that the pretended deed of assignment was made for the purpose of hindering, delaying, and...