Thygesen v. Neufelder

• Citation: 37 P. 672,9 Wash. 455
• Parties: THYGESEN ET UX. v. NEUFELDER. [1]
• Decision Date: 04 August 1894
• Court: Washington Supreme Court

37 P. 672

9 Wash. 455

THYGESEN ET UX. v. NEUFELDER. ^[1]

Supreme Court of Washington

August 4, 1894

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by Christian Thygesen and wife against E. C. Neufelder. There was a judgment for petitioners, and defendant appeals. Reversed.

Strudwick & Peters and Dorr. Hadley & Hadley, for appellant.

Bruce Brown & Cleveland, for respondents.

HOYT J.

Christian Thygesen made a deed of assignment under the provisions of the insolvency act of March 6, 1890. The assignee named therein having failed to qualify, the appellant was, in pursuance of the provisions of the statute, appointed assignee, and qualified and entered upon the discharge of his duties as such. As a part of the assets of the estate, he collected certain moneys due upon a lease which, before the execution of the deed of assignment, had been made by said Christian Thygesen to one Brown and one Carter. Thereafter said Christian Thygesen and Karen M. Thygesen, his wife filed their petition in the superior court in the assignment proceeding, and prayed that the assignee should be required to account for and pay over to them the money so collected. The superior court made an order granting the prayer of the petition, from which this appeal has been prosecuted.

Appellant relies upon several propositions as furnishing reasons for the reversal of the order, the first and most important one being that the deed of the insolvent debtor, although his wife did not join in the execution thereof, was effectual to convey to his assignee in trust, pursuant to the act above cited, the community real estate for the payment of the community debts. If this contention of the appellant is sustained, the result will be a reversal of the order; for it is conceded that the real estate for the use of which the rent was paid was community property, and it is also conceded that the debts which have been proved in the insolvency proceeding were those of the community. If the deed of assignment executed by the husband alone is to be construed as a conveyance of the property therein described to the assignee named therein, for the purpose of having it applied to the payment of his debts, it is clear that it cannot have force so far as the community property is concerned. In other words, if the assignment therein made is to be treated simply as a conveyance at common law, and the provisions of the statute applied thereto in aid of the common-law assignment thereby created, the property of the community could not be conveyed thereby. The effect of deeds of assignment under this statute has been already determined by this court. In Bank v. Van Wagenen, 2 Wash. St. 172, 26 P. 253, we held that the former law upon the subject was one providing for the application of all the insolvent's estate to the payment of his debts, and that when once set in motion by the action of the debtor, it passed to the assignee all of his property, whether set out in the schedules or not; and in Mansfield v. Bank, 5 Wash. 665, 32 P. 789, 999, we held that the law under consideration had taken the place of the former one, and that proceedings thereunder were for a like purpose and that the right to all of the property of the debtor passed to the assignee or to the court in which the proceedings were instituted, for the benefit of the creditors, regardless of the question as to whether or not all of such property was set out in the deed. It is therefore unnecessary for us to further consider the question as to the nature of the proceeding under the insolvency act in question. It is now the settled law of the state that it is but one of the means by which an insolvent debtor may surrender to the court all of his property, for the purpose of having it applied to the payment of his debts. This being so, the important question is presented for our decision as to...