Seaney v. Molling, Civil 4667

• Citation: 62 Ariz. 81,153 P.2d 532
• Decision Date: 27 November 1944
• Docket Number: Civil 4667
• Parties: S. W. SEANEY, as Assignee for the Benefit of Creditors IN THE MATTER OF ASSIGNMENT OF HERLINDA B. MOLLING and CARL E. MOLLING, Her Husband, dba MOLLING APPLIANCE COMPANY, Appellant, v. HERLINDA B. MOLLING and CARL E. MOLLING, Her Husband, Appellees
• Court: Supreme Court of Arizona

153 P.2d 532

62 Ariz. 81

S. W. SEANEY, as Assignee for the Benefit of Creditors IN THE MATTER OF ASSIGNMENT OF HERLINDA B. MOLLING and CARL E. MOLLING, Her Husband, dba MOLLING APPLIANCE COMPANY, Appellant, v. HERLINDA B. MOLLING and CARL E. MOLLING, Her Husband, Appellees

Civil No. 4667

Supreme Court of Arizona

November 27, 1944

APPEAL from a judgment of the Superior Court of the County of Pima. Benjamin Blake, Judge.

Judgment affirmed.

Messrs Krucker, Fowler & Dodd, for Appellant.

Mr Clarence E. Houston and Mr. Robert A. May, for Appellees.

Ross J. McAlister, C. J., and Stanford, J., concur.

OPINION

Ross, J.

This is an action to quiet title to Lot 18, in Block D, in the Vista Del Monte Tract, Pima County, Arizona, by Carl E. Molling and Herlinda B. Molling, husband and wife, residents of Tucson, against S.W. Seaney as their assignee for the benefit of their creditors.

The first amended complaint, upon which the case was tried, was filed May 8, 1943, and seeks to have said property declared plaintiffs' homestead. The assignment for the benefit of their creditors was made, as it recites, by plaintiffs to defendants Seaney on March 21, 1938, and is an assignment of all of the plaintiffs' real and personal property "not exempt from execution." At that time, while plaintiffs were residing upon the above described property as their home, they had not filed a homestead declaration thereon. Assignee Seaney proceeded, after his appointment, to collect and distribute the assets of the assigned estate, and concluded his duties in that regard on December 11, 1939, and was by order of the court duly discharged and his bondsmen exonerated. Later defendant Seaney petitioned the court to reopen the matter and to vacate and set aside his final discharge therein for the purpose of distributing the claimed homestead property. This petition to re-open was granted.

Defendant Seaney insists that the assignment made to him March 21, 1938, vested him, as assignee, with the title to said property as of the date of the assignment, and there being at that time no declaration of homestead thereon, he became the owner of said property with the right and power to dispose of it in the discharge of the debts of the assignors.

These conflicting claims were by the court resolved in favor of the plaintiffs, and the question raised on this appeal is, does the law support the judgment of the trial court?

Section 30-101, Arizona Code Annotated 1939, provides for assignment by insolvent debtors for the benefit of their creditors, and it and subsequent sections impose upon the assignee the duty of converting the assets of the insolvent debtor, "other than that which is by law exempt from execution" into money and its distribution among the creditors.

The plaintiffs, acting in pursuance of said section, on March 21, 1938, assigned all their property to defendant Seaney as assignee, except such property as was "exempt from execution."

This homestead property was not expressly included in the deed of assignment, that instrument on its face conveying only the property of the assignors not exempt from execution. Apparently at that time the assignee and the assignors were of the opinion that such property was exempt from execution. It is now the contention of the assignee Seaney that the deed of assignment notwithstanding conveyed to him all of the property of the assignors. It is admitted that accompanying the deed of assignment was a list of all the property of the assignors, except this homestead property, and it also appears that the assignee proceeded to administer the assets of the assignors, not including the homestead, and that he afterwards submitted a report of his actions, and asked that he be discharged, which was granted. In other words, all of the parties from the very beginning on down until just before this action was filed acted upon the belief that the homestead property was exempt.

The question now is, did the deed of assignment, notwithstanding the actions of the assignee and the assignors, convey title to the homestead to the assignee?

It is very well settled that a deed of assignment for the benefit of creditors conveys all the title of the assignors to the property assigned. 4 Am. Jur. 384, sections 97, 98. However the title to the property here in question was not conveyed to the assignee for the benefit of the creditors, unless by force of the law itself, contrary to the intention of the...