Page v. Weymouth , 47 Me. 238 ( 1859 )

The opinion of the Court was drawn up by

Mat, J.

The trustee claims the property in his possession by virtue of an assignment from the principal defendant, made on May 11th, 1857, for the benefit of creditors. No objection is made to it on account of any of its provisions. Its phraseology is such as to secure the precise objects and purposes which the statute requires; and there is no doubt but that the assignee has done and performed all the statute duties which were devolved upon him by the acceptance of the trust, o

Still, it is claimed by the plaintiff that said assignment is void, upon the ground that the manner of its execution, and the circumstances attending, are not a reasonable compliance with the statute which authorizes a debtor to make an assignment, for the benefit of his creditors. The objection, and the only one which has been urged against it, lies in the fact that, when it was executed by the principal defendant and trustee, it was made to consist of three parts, all signed by both parties at the same time, and each part being an exact transcript of the others. The proper oath is duly certified upon each part. At the time of the execution, one part was taken by the assignee, one by the assignor, and the other was left with one acting as the attorney of all the parties thereto. That part which was left with the attorney was, subsequently, but within three months from its date, duly executed by eight individuals and firms as creditors of the assignor, and that part taken by the assignee received the signature of no creditor until it was signed by the firm of Zina Hyde & Co., on the 20th day of August after, which was not within three months from its date, but was within three months from the time of the publication of the notice then required by the provisions of the statute of 1844, c. 112, § 3.

The question was discussed, by counsel at the argument, whether this signing was in season to constitute the firm of Zina Hyde & Co., legal parties to the assignment, and, although the determination of this question may not be necessary to a decision of the question before us, it may not be improper to say, for the purpose of preventing future litigation, that, in our judgment, the notice which is required by the provisions of the third section of the statute just referred to, and which is to be given within fourteen days after the making of the assignment, is to allow three months to all creditors to become parties thereto. The evident intention was to give three months notice.

The publication of the notice appears to have been on May 20, 1851. In computing the time, the day of its date is properly to be excluded. The signing of Zina Hyde & Co., was, therefore, in season under the statute then in force. By the Revised Statutes of 1851, it would have been too late.

That part of the assignment which was taken by the assignor does not appear to have received the signature of any creditor.

In view of the foregoing facts, our inquiry now is, was this tripartite assignment valid ? The statute has prescribed no form. It requires only such an instrument as will perfect its Object. It evidently contemplates but one assignment, but, upon the question, whether this may or not consist of various parts, it is silent. If an assignment in three parts will fairly effectuate the purposes of the statute, then it will be valid, notwithstanding an assignment consisting of but one part may be equally effectual. The question is not, therefore, which is the better mode, but whether the mode adopted in the case before us is a legal mode.

It is contended, with much force, that notwithstanding an assignment is to provide for three parties and to contain provisions in favor of each, still it ought to consist of but one part; and, it may be, that such an instrument, a copy being left in the Probate office for the benefit of all who may be interested in it, would be amply sufficient to secure the rights of all. It is also said that an instrument which is tripartite is irregular, leading to confusion and likely to deceive; and that a creditor, who wishes to become a party to it, has the right to know what creditors have become a party to it, because such knowledge would be likely to influence his own action. Undoubtedly, the amount which any creditor would receive, in the distribution of the debtor’s estate, would depend upon the number of creditors who should become parties, and the amount due to each. But such knowledge is not contemplated as appearing upon the face of the assignment, by the statute. Those who first become parties cannot, in the nature of things, know who will subsequently become such. Each creditor acts for himself, and acts upon such information as he may chance to obtain, in regard to the number of creditors and the amount of their debts. If no fraud is practiced upon him, he has no right to complain, and if he becomes a party to the assignment, he must be bound by it. It is not perceived how the last creditor who becomes a party, is, of right, entitled to any more information than those who preceded him, or how, if such information be, without' fraud or accidentally, withheld from him, his rights can be affected thereby. If he desires such information, and, by inquiry, seeks it, and it is fraudulently withheld, a different question would be presented.

By the statute of 1849, c. 113, § 1, it is made the duty of the assignee, within ten days from and after the time allowed for creditors to become parties to such assignment, not only to return into the Probate office a true inventory of all the property that has come into his hands, but also the names of all the creditors who have become parties to the assignment, with a list of their respective claims. The validity of each and every claim, and its justness, may be legally established, if the assignee so desires. Under such circumstances, it is difficult to apprehend how any creditor, who becomes a party, can sustain any legal injury by his lack of knowledge as to what creditors have become parties before him; or what injustice is done to him, if he supposed, when he became a party, that no other creditor had or would become so, if it subsequently turns out that there are many others to share with him in that equitable distribution of the debtor’s estate, which the Btatute, in such case, was designed to give to all the creditors alike. While, therefore, as a matter of convenience, it may be expedient that an assignment with one part only should be made, and that should be kept in one place, open to all who may be interested therein, we are unable to see, in the fact that it is not so, any evidence of fraud or unfairness, which should render it void.

It may be that some advantages will be found in an assignment that is tripartite, over one that is not. That the assignor should have one part in his hands seems to be peculiarly appropriate and proper. It may be necessary for his security and the protection of his rights. Suppose that the assignee, after having accepted the trust, should fail to give a bond, and, having taken the assignor’s property, should refuse to give any notice or to act at all, yet still holding the property and refusing to give it up, would not the assignor be safer with a part in his own hands than with an assignment of one part only, and that in the hands of the assignee ? '

It is not perceived how the fact that the'assignee has two parts of the assignment duly executed by him and the assignor, in all respects alike, one in his own hands and the other in the hands of his attorney, can render the assignee less liable to any creditor who becomes a party, whether by signing the one or the other, than he would have been, if the assignment had been made with one part only; nor is it perceived why such creditor does not as effectually express his assent to the assignment, and bind himself, by affixing his signature and seal to the one as to the other.

In the case of Ward & al. v. Lewis, 4 Pick., 518, an assignment by an insolvent debtor, in trust for his creditors, by an indenture of three parts, was regarded and upheld without question as valid. We see no distinction between such an assignment, so far as relates to its form, and one under our statute. The practice of making assignments in this manner, we think, will be found to have prevailed to some extent in this State.

An assignment is but a contract between the several parties to it. Prom the nature of such an instrument, it would seem to be proper that each party should have it in his possession, and, notwithstanding the inconveniences which have been suggested as growing out of a multiplicity of parts, we cannot doubt that an assignment in the form of an indenture is valid. When an instrument is to contain a contract between several parties, and covenants by and in favor of each, there seems to be no legal reason why there may not be as many parts as parties. Hence, formerly the mode of securing the rights of each party in such a case, so far as the selection of the instrument was concerned, was by several instruments exactly alike, which was called an indenture. This mode was selected because a deed-poll was not, strictly speaking, an agreement between two persons; but a declaration of some one particular person, respecting an agreement made by him with some other person. See Bouvier’s Law Die., vol. 1, under the words, deed-poll and indenture.

It is not to be denied, however, .that in our practice the strictness which was formerly observed in regard to the use of these several instruments has been very much relaxed; and, in our judgment, an assignment under our statute, if made and executed in either mode, without fraud, will be binding. The result is, that the trustee is entitled to retain the property disclosed, to be applied by him to the purposes for which it was assigned. He must, therefore, be discharged.

Exceptions overruled.

Tenney, C. J., and Rice, Appleton and Davis, JJ., concurred.

Note by Davis, I.— The assignment in this caséis not, strictly, tripartite. Neither part refers to any other. Each purports to he the only assignment.

And yet that does not make the assignment void. If they had not been executed at the same time, the first would have been valid; and the others might have been invalid, because the assignor, after executing the first, had nothing left. But by executing several at the same time, he, and the assignee, are estopped from denying the validity of either. And, in the absence of fraud, such an assignment will be good; and all who become parties by signing either copy, will be entitled to share in the proceeds.

If a debtor should execute several composition" deeds, all of the same date and tenor, and distribute them among his creditors, to be executed by them severally, there can be no doubt hut that they would he held valid as one contract on his part, and binding on all creditors who should become parties. The'assignment in this case is valid for the same reasons.

There might be some difficulty, in case all the copies were not returned to the assignee immediately upon the expiration of the time for the creditors to become parties thereto, in making his return to the Probate office. But no such difficulty has arisen in this case. And though I have no doubt it was intended by tbe statute, that there should be but one copy of the assignment, and that such a course would be safer, and better; I see no reason in this case why the assignment should not be sustained.