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Argument for Appellants.

ments to distinguish them from such as are made by the compulsion of the law, as under statutes of bankruptcy and insolvency, or by order of some competent court. Manny v. Logan, 27 Missouri, 528.

“ Voluntary assignments for the benefit of creditors are transfers, without compulsion of laws, by debtors of some or all of their property, to an assignee or assignees in trust, to apply the same, or the proceeds thereof, to the payment of some or all of their debts, and to return the surplus, if any, to the debtor.” Burrill on Assignments, 4th ed. S 2.

When a debtor has made a general disposition of all his property and effects, and suspended his whole business in consequence thereof, thereby declaring insolvency, his act in so doing constitutes a voluntary assignment under the Missouri statute; and it is immaterial whether that act be effectuated by one or more instruments, provided they are parts of one and the same transaction, in and by which the debtor so disposes of his property. The assignment statute is remedial in its nature and intended to prevent preferences, as the statute of fraudulent conveyances is aimed at frauds, and both must be liberally construed, in the very nature of things, in order to accomplish the purposes for which they were enacted. The courts look beyond the mere form of instruments, and, with the aid of parol proof, construe them according to their real meaning and effect. Martin v. Hausman, 14 Fed. Rep. 160 ; Kellogg v. Richardson, 19 Fed. Rep. 70; Clapp v. Dittman, 21 Fed. Rep. 15; Perry v. Corby, 21 Fed. Rep. 737; Kerbs v. Ewing, 22 Fed. Rep. 693; Clapp v. Nordmeyer, 25 Fed. Rep. 71 ; Freund v. Yaegerman, 26 Fed. Rep. $12; State ex rel. Feldkamp v. Morse, 27 Fed. Rep. 262; Weil v. Polack, 30 Fed. Rep. 813; Crow v. Beardsley, 68 Missouri, 435; State v. Benoist, 37 Missouri, 500; Sexton v. Anderson, 95 Missouri, 373; Berry v. Cutts, 42 Maine, 445; Downing v. K'intzing, 2 S. & R. 326; Holt v. Bancroft, 30 Alabama, 193; Livermore v. McNair, 34 N. J. Eq. 478; Watson v. Bagaley, 12 Penn. St. 164; S. C. 51 Am. Dec. 595; Miners' National Bank's Appeal, 57 Penn. St. 193; Burrows v. Lehndorf, 8 Iowa, 96; Cole v. Dealham, 13 Iowa, 551; Van Patten v. Burr, 52 Iowa,

Opinion of the Court.

518; Harkrader v. Leidy, 4 Ohio St. 602; Dickson v. Rawson, 5 Ohio St. 218; Englebert v. Blanjot, 2 Wharton, 240; Mussey v. Noyes, 26 Vermont, 462; Thompson v. Heffner, 11 Bush, 353; Perry v. Holden, 22 Pick. 269.

Mr. Henry H. Ess and Mr. O. II. Dean (with whom were Mr. William Warner and Mr. James Hagerman on the brief) for appellees.

MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.

The claim of each plaintiff being for less than $5000, and the amount in dispute, therefore, insufficient to give this court jurisdiction of the whole case, our jurisdiction is confined to answering the questions of law presented by the certificate of division of opinion between the judges before whom the case was heard in the Circuit Court. Rev. Stat. SS 650, 652, 693; Act of February 16, 1875, c. 77, § 3, 18 Stat. 316; Dow v. Johnson, 100 U. S. 158; United States v. Ambrose, 108 U. S. 336; Jewell v. Knight, 123 U. S. 426.

The determination of these questions is governed by the law of Missouri, where the deed of trust was made, and the parties to it resided. In ascertaining the construction and effect of section 354 of the Revised Statutes of the State of 1879, which is supposed to affect the case, it is important to bear in mind the law of Missouri as it existed before those statutes were enacted.

The Supreme Court of Missouri in 1852, speaking by Mr. Justice Gamble, said: “It is not necessary to quote books for the purpose of showing that a debtor in failing circumstances may give a preference to one or more of his creditors to the exclusion of others; and that such disposition of his effects is not impeachable on the ground of fraud, because it embraces all his property;" and accordingly upheld assignments by insolvent debtors of all their property to pay particular creditors. Cason v. Murray, 15 Missouri, 378, 381; Richards v. Levin, 16 Missouri, 596, 599.

Opinion of the Court.

It was also well settled by the decisions of that court, that each partner, by virtue of the relation of partnership, and of the community of right and interest of the partners, had full power and authority to sell, pledge or otherwise dispose of all personal property belonging to the partnership, for any purpose within the scope of the partnership business, and might therefore, without the concurrence of his copartners, mortgage the partnership property by deed of trust, to secure the payment of a partnership debt; Clark v. Rives, 33 Missouri, 579; Keck v. Fisher, 58 Missouri, 532; although one partner, without the concurrence of his copartners, could not delegate to a stranger the right of the partnership to administer the partnership effects, and therefore could not make a general assignment of all the property of the partnership for distribution by the assignee among the partnership creditors, retaining no equity of redemption in the partnership. Hughes v. Ellison, 5 Missouri, 463; Ilook v. Stone, 3+ Missouri, 329.

The statutes of Missouri restricting voluntary assignments have always been construed rather strictly by the Supreme Court of the State.

By the earliest statute upon the subject, “in all cases in which any person shall make a voluntary assignment of his lands, tenements, goods, chattels, effects and credits, or any part thereof, to any person, in trust for his creditors or any of them, it shall be the duty of the assignee” to file an inventory of the assigned property in the office of the clerk of the Circuit Court of the county in which the assignee resides. Missouri Rev. Stat. of 1845, c. 10, $1; reënacting Act of February 15, 1841, § 1, Missouri Laws of 1840–41, p. 13.

In the Revised Statutes of 1855, c. 8, § 1, that section was reënacted, and at the end of the chapter this section was added : “S 39. Every provision in any assignment, hereafter made in this State, providing for the payment of one debt or liability in preference to another, shall be void ; and all debts and liabilities, within the provisions of the assignment, shall be paid pro rata from the assets thereof."

The Supreme Court of Missouri repeatedly and uniformly held that, taking those two sections together, $ 39 only pro

Opinion of the Court.

hibited preferences among the creditors designated in an assignment, either of the whole or of part of the debtor's property, but did not invalidate partial assignments for the benefit of some of the creditors of the assignor, and was so far inefficient to prevent preferences among creditors; and the court observed: “If the legislature wish to strike at the root of the evil, they must go back to an old principle of the common law, which permits a debtor to prefer one creditor to another, and which privilege can be effected in a variety of modes other than those referred to in our statutes concerning assignments.” Shapleigh v. Baird, 26 Missouri, 322, 326 ; Johnson v. McAllister, 30 Missouri, 327; Many v. Logan, 31 Missouri, 91; State v. Benoist, 37 Missouri, 500, 516.

An act of February 13, 1864, repealed § 39 of the act of 1855, and enacted that “every assignment hereafter made in this State,” under the provisions of the act of 1955, “shall be for the benefit of all creditors who shall present and prove up their claims under the provisions of said act, and all debts and liabilities so proved and allowed shall be paid pro rata from the assets thereof.” Act of February 13, 1864, SS 8, 9, Missouri Laws of 1863–64, p. 6.

In 1865 this provision was reënacted in this form : “Every voluntary assignment of lands, tenements, goods, chattels, effects and credits made by a debtor to any person in trust for his creditors shall be for the benefit of all the creditors of the assignor, in proportion to their respective claims." Gen. Stat. of 1865, c. 112, $ 1; 1 Wagner's Stat. (3d ed.) 150.

In 1878 the construction and effect of this provision were drawn in judgment before the Supreme Court of Missouri in Crow v. Beardsley, 68 Missouri, 435, where a debtor had conveyed his stock of merchandise by a deed of trust, in no respect differing from the one now before us, to secure the payment of certain of his creditors. It was contended that the provision of the statute, just quoted, avoided all conveyances of property which gave a preference among creditors. But it was held that while that provision had a wider scope than $ 39 of the act of 1855, and was designed to prevent any preference of creditors “ by assignment,” yet it did not avoid deeds of

Opinion of the Court.

trust, in the nature of mortgages, which were only securities for the payment of debts. The court clearly pointed out the distinction between assignments and deeds of trust in the nature of mortgages, saying: “An assignment is more than a security for the payment of debts; it is an absolute appropriation of property to their payment.” “The distinction is that an assignment is a conveyance to a trustee for the purpose of raising funds to pay a debt, while a deed of trust in the nature of a mortgage is a conveyance in trust for the purpose of securing a debt, subject to a condition of defeasance. The deed in question here is, therefore, a deed of trust in the nature of a mortgage.” 68 Missouri, 437, 438. Upon these reasons it was adjudged that the deed was not within the statute concerning assignments, and could not be avoided by a creditor not named in it, except for fraud.

The section there construed was afterwards reënacted, in the same words, in § 354 of the Revised Statutes of 1879, which were the statutes in force when the deed of trust in this case was made.

The only embarrassment in the present case has been occasioned by the course of decision in the Circuit Court of the United States within the State of Missouri, originating in a case decided in 1882 by an opinion of Judge Krekel with the concurrence of Judge McCrary. Martin v. Hausman, 14 Fed. Rep. 160.

In that case, the debtors assigned and transferred their whole stock in trade by a deed which declared that it was made to secure certain debts therein mentioned, but directed the assignee to proceed at once to sell the property, and out of the proceeds to pay the debts as they matured, and provided that after they had been fully paid “this deed shall be released,” and reserved no right of redemption to the assignors. Upon a review of the decisions of the Supreme Court of Missouri, and especially Shapleigh v. Baird, State v. Benoist and Crow v. Beardsley, above cited, it was held that, as the deed did not purport to be a security for a debt, leaving an equity of redemption in the grantors, and empowering the trustee to sell only if the debts specified should not be paid

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