Spitley v. Frost and others.

How. 137. This latter was a statutory proceeding to confirm a judicial sale instituted by the publication of notice to all persons claiming an interest in the property sold to come in and assert their rights. The decision and order of confirmation in such a case was held to be a final judgment, binding both upon absent claimants and present contestants, and as such reviewable in the supreme court of the United States.

It is suggested by counsel that it does not appear from the record that the court decided the homestead question in passing upon the motion to confirm the sale, or upon the application to set the same aside. Assuming, without deciding, that it must appear from the record that the question was necessarily passed upon, and that it is not sufficient to show that it might have been decided, how does the case stand? The motion was to set aside the sale on several grounds, and among them upon the ground that the property was exempt as a homestead. The motion was overruled and the sale was confirmed. In order to reach this conclusion it was necessary for the court to decide the question of homestead adversely to the respondent Frost. If the sale had been set aside by the court without specifying upon which ground, it might have been contended that the decision of the court did not necessarily involve a determination of the question of exemption; but since the sale was confirmed, it must have been because, in the judgment of the court, none of the grounds urged against the validity of the sale were good. If the court had not decided this question of exemption against the right claimed, it could not have confirmed the sale. The case comes, therefore, clearly within the doctrine of res adjudicata.

The question now before us arose in a former case between the same parties or their privies. It was properly presented to the court, testimony was taken, a hearing was had, and a final order was made.

The orders heretofore made respecting the issues upon the

Dodd and others v. Martin and another.

cross-bill of respondent Bryant are to stand without modification.

If respondents George W. and Abbie S. Frost desire an appeal, the same will be granted upon proof that the property is worth more than $5,000, and the bond for costs will be fixed at $500.

DODD and others v. MARTIN and another.

(Eastern District of Arkansas. October, 1882.)

1. ASSIGNMENT FOR BENEFIT OF CREDITORS - DEED OF ASSIGNMENT FAILURE TO ATTACH SCHEDULE.-The failure to attach the schedule of property described in a deed of assignment renders the deed inoperative and void as to all property intended to be embraced in the schedule, and not otherwise described than by reference to it. 2. SAME― STIPULATIONS.—A deed of assignment containing a stipulation that no creditor shall participate in the proceeds of the property assigned unless he accepts the same in full satisfaction of his debt, is valid in Arkansas; but a deed containing such a stipulation, to be valid, must convey all the debtor's property.

On the twenty-sixth of December, 1882, the defendant executed and delivered to Allison, as assignee, a deed of assignment for the benefit of creditors. Two days afterwards the plaintiffs sued out an attachment against Martin, which was levied on a stock of goods in the possession of Allison, the assignee, and which had belonged to Martin. Martin traversed the plaintiff's affidavit, upon which the attachment was sued out, and Allison filed an interplea claiming the goods attached as assignee under the deed of assignment. Both issues were tried before the court. That part of the deed of assignment material to the case reads as follows:

"I, John A. Martin, do hereby grant, bargain and sell to T. J. Allison, assignee in trust, for the benefit of all my creditors, the goods, wares, merchandise and property hereto attached in schedule A, made a part of this conveyance, to

Dodd and others v. Martin and another.

have and to hold to him in trust as aforesaid forever; I conveying also to the said T. J. Allison, assignee, for the use aforesaid, all notes, books, accounts, and every class and character of evidence of debt to me belonging, or relating to my business in any manner whatever, with full authority in said T. J. Allison, assignee, to collect the same and apply them to the uses of this trust in manner and form as is by law prescribed in that behalf. The said T. J. Allison, assignee, shall proceed to collect and dispose of goods, wares, merchandise, and property, and choses in action, and apply the same to the payment of my creditors, share and share alike: provided, that no creditor herein provided for shall participate in the assets herein assigned, unless he accepts the same in full of his claim. This assignment to be closed up under the direction of creditors assenting to the same. "December 26, 1882.

[Signed]

"J. A. MARTIN." The deed was acknowledged and delivered, and the keys of the store, house, and possession of the stock of goods delivered to Allison as assignee under the deed at its date; but the assignee did not file the inventory and give the bond as required by section 385, Gantt's Digest, and had not done so down to the day of trial, and the schedule mentioned in the deed as being attached thereto and made part thereof was not attached, and was not made out at the time. the deed was executed and delivered, nor until some time after the levy of the attachment.

U. M. & G. B. Rose, for plaintiff.

The deed is void for the following reasons:

1. It exacts releases and by implication reserves the surplus to the grantor. Malcolm v. Hodges, 8 Md. 418; Whidbee v. Stewart, 40 Md. 414; Ingraham v. Wheeler, 6 Conn. 277; Bump. Fraud. Conv. 430; Burrill, Assignm. § 207.

2. No time is specified within which creditors are to accept and release. Bump. Fraud. Conv. (2d ed.) 433; Burrill,

Dodd and others v. Martin and another.

Assignm. 197; Henderson v. Bliss, 8 Ind. 100; 2 Kent, Comm. 533.

3. The schedule A mentioned in the deed not having been attached thereto, the assignment was ineffectual to convey the property intended to be embraced in the schedule. Barkman v. Simmons, 23 Ark. 1; Moir v. Brown, 14 Barb. 39.

4. The assignment took effect as to the choses in action at the time of its delivery. Clayton v. Johnson, 36 Ark. 406. At the time of the levy it was, therefore, a partial assignment, exacting releases, and void. Burrill, Assignm. (4th ed.) 273; Bump, Fraud. Conv. (2d ed.) 492; In re Wilson, 4 Pa. St. 430; Graves v. Ray, 13 La. 454; Hennesy v. Bank, 6 Watts & S. 300; Clayton v. Johnson, supra.

5. The provision that the assignment shall be closed up under the direction of the creditors assenting to the same makes the assignee the mere agent of those creditors. The assenting creditors are by this clause invested with plenary powers over the estate, and yet they are governed by no law, give no bond, take no oath, and are answerable to no one for an abuse of these powers. Nor would the assignee be responsible for obeying their orders to the prejudice of the rights of other creditors, because one of the conditions of his bond is that he "will execute the trust confided to him according to the terms of the assignment," one of which is that he shall close it up under the direction of the assenting creditors.

Section 43 of the bankrupt act (sec. 5103, R. S.) authorized three-fourths in value of the creditors who had proved their debts to "wind up and settle" the bankrupt's estate by trustees appointed by them. These words were held to be large enough to embrace the entire control and management of the bankrupt's estate, and the direction of the committee of creditors to the trustee in regard to the settlement of the estate was held to be conclusive and binding on the bankrupt court and all other creditors. In re Dorby, 4 N. B. R.

Dodd and others v. Martin and another.

211; In re Jay Cook & Co. 11 N. B. R. 1. And if this deed is held valid, the clause in question has the effect to deprive the assignee of all control over the administration of the trust. The clause is not only without any statute authorizing it, but is in derogation of the statute, which points out specifically how the assignee shall discharge his trust. It is not for the debtor to assume that he can devise a better mode of administering the trust than that prescribed by law. Whenever he has attempted to do so the assignment has been adjudged void. Raleigh v. Griffith, 37 Ark. 150; Teah v. Roth, MS. opinion, November Term, 1882; Schoolfield v. Johnson, 11 Fed. Rep. 297.

6. The statute prohibits the assignee from taking possession of the property assigned until he has filed the inventory and given the bond required by law. Parties cannot defy the law with impunity. The object of the statute was to put it out of the power of an irresponsible or dishonest assignee selected by the debtor to defraud the creditors. The prohibition is addressed to the debtor as well as the assignee. An act knowingly done in violation of an express command of a statute, enacted to prevent fraud, is itself a fraud in law. No inquiry is permissible to show the statute was violated through ignorance, or for a good purpose.

7. The case of Clayton v. Johnson does not decide that the deed in that case was a valid deed. Objection to the introduction of the deed was not made in the court below; but after it was introduced an instruction was asked that the deed be disregarded because it contained a clause exacting releases. This was the only question of law reserved, and, of course, the supreme court could not pass upon any other point. It is clear that the deed was bad for several reasons, and that it must have been so held if the points had been raised in the trial court.

Joseph W. Martin, for defendant and interpleader.

1. The deed was inoperative for any purpose till the