Tarbox v. Stevenson , 56 Minn. 510 ( 1894 )

Canty, J.

On April 13, 1893, the plaintiffs recovered judgment .against the defendants in the District Court of Goodhue county, and on April 15, 1893, commenced garnishment proceedings < on that judgment against said garnishee. On May 13, 1893, the garnishee duly disclosed in said proceedings that on February 9, 1893, the defendants, who were partners having their place of business in that county, made and filed in that court their deed of assignment, purporting to be an assignment by them to him for the bene:fit of all their bona fide creditors who shall file releases of their claims under Laws 1881, cli. 148, as amended by Laws 1889, ch. 30, that he accepted the trust, duly qualified, and took possession of a large amount of the property of the defendants, and thus had in his possession, as the proceeds of the same, a sum of money which wras more than sufficient to pay said judgment.

The plaintiffs appeal from the order of the court below denying their motion for judgment against the garnishee.

The plaintiffs attack the assignment as void as against creditors for the reason, as they claim, that the deed is void on its face because it does not appear on its face to be an assignment of all of the property of the defendants not exempt from execution.

The description in the deed of the property so assigned is as follows : “All the lands, tenements, hereditaments, and appurtenances, goods, chattels, choses in action, claims, demands, property, and effects of every description, belonging to the parties of the first part, [the assignors,] wherever the same are situated in the state of Minnesota and the state of Wisconsin, except such property as is by 'law exempt from levy and sale on execution.”

The fair interpretation of the instrument is that they assign only the unexempt property which they have in the states of Wisconsin and Minnesota. They may have unexempt property elsewhere, and they may not. There is nothing on the face of the deed to indicate whether they have or not.

It must appear on the face of the deed that all of the assignor’s unexempt property is by it assigned for the benefit of his creditors, and if it does not the deed of assignment is void on its face as against creditors. May v. Walker, 35 Minn. 194, (28 N. W. 252.) To hold otherwise would be to make the validity or invalidity of the assignment depend on extrinsic evidence; and it would be° held good in one case, and bad in another, depending in each case-on extrinsic facts. Such a state of things would be intolerable.

For these reasons, the order appealed from is reversed.

(Opinion published 58 N. W. Rep. 157.)