a common form of assignment (if not the prevailing form), is that of two parts, executed between the debtor or assignor of the one part, and the assignee or trustee of the other part, without any creditor becoming a party; and such an assignment, on its acceptance by the assignee, is held to be valid. and effectual as a provision for creditors, creating a trust for them which they can enforce in the proper courts, and is irrevocable by the assignor. A different rule prevails in England, and hence has arisen a material distinction between the forms of assignment in use in the two countries, in regard to their legal qualities and effect as modes of provision for creditors.2

6 Humph. 313; Ingram v. Kirkpatrick, 6 Ired. Eq. 462; Stimpson v. Fries, 2 Jones' Eq. 156; Jones v. Dougherty, 10 Ga. 273; Bellamy v. Bellamy's Adm'r, 6 Fla. 62; Hall v. Dennison, 17 Vt. 310; 2 Kent's Com. [533] 691; Brown v. Chamberlain, 9 Fla. 464; Forbes v. Scannell, 13 Cal. 242; see post, Chap. XX.

'In Fellows v. Greenleaf (43 N. H. 421), it is said that an assignment not only does not need to contain, but should not contain, any provision for the creditors to sign it, or become parties to it, because if it is properly drawn and executed between the debtor and assignee, the assent of the creditors will be presumed; and if not so, it will be void as well as to those who have assented to it as to those who have not. See Stimpson v. Fries, 2 Jones' Eq. (N. Ca.) 156; 2 Kent's Com. [533] 692, n. See the subject more fully considered, and the principal cases cited, in Chap. XIV; see Gibson v. Rees, 50 Ill. 383.

2 Assignments to which no creditor is a party, are in England called deeds of agency, or voluntary deeds of agency, the nature and operation of which are thus explained by Rolfe, V. C., in the case of McKinnon v. Stuart, 20 L. J. (N. S.) Chan. 49: The doctrine of this court, as to mere deeds of agency, is perfectly simple and intelligible. It is competent to any one to make another his agent or attorney, to get in his property and apply it in payment of his debts, or in any other mode he may direct. And after he has done so, he may, at his pleasure, revoke the authority so given, and direct any other disposition of his property which he may prefer. What was really decided in Garrard v. Lord Lauderdale, and other cases involving the same point, was only this: that, in such a case, the conveyance of property to the agent, makes no difference as to the right of revocation in the debtor. The party in whom the property has been vested is a mere trustee for the debtor by whom it has been conveyed to him. He is still the mere agent or attorney, or in the nature of an agent or attorney of the debtor, and must obey his directions as to the disposal of the property. On the other hand, it is abundantly clear on the authorities, that where a creditor is a party to a deed whereby his debtor conveys property to a trustee, to be applied in liquidation of the debt due to that creditor, the deed is, as to the creditor, irrevocable. A valid trust is created in his favor, and the relation between the debtor and trustee is no longer that of mere principal and agent. Of course, that which is true where a single creditor is the cestui que trust, is at least equally so where there are many creditors. Nor does the creditor executing the deed become less a cestui que trust because he gives nothing to the debtor as a consideration for the trust created in his favor, or because it was the voluntary, unsolicited act of the debtor, to create the trust. I never knew that any question had been raised on this subject, as against creditors who had executed the deed, and so made themselves cestuis que trust. Where they have not executed the deed, questions have often arisen how

In some of the States assignments have been required, by statute, to be so drawn as to enable the creditors to become parties to them, if they choose, otherwise they were invalid as against creditors not parties. This was the case in Massachusetts, under the statute of 1836, c. 238;1 although, even before this statute, it was considered necessary in that State that the creditors should be parties. This was in conformity with the English rule and practice, already referred to. In Maine all assignments are required to provide for a proportional distribution of the debtor's estate among all his creditors becoming parties thereto; and three months from the execution of the deed are allowed the creditors to

2

far, by having been apprised of its execution, and so, perhaps, been induced to do or abstain from doing something which may affect their interests, they may not have acquired the rights of cestuis que trust. This is the question referred to by Sir John Leach, in Acton v. Woodgate (2 Myl. & K. 492), and by Sir E. Sugden, in Brown v. Cavendish (1 J. & L. 606). But where, as in the present case, the creditors have actually executed the deed, I apprehend there is no longer any possibility of treating it as a mere voluntary deed of agency, revocable by the debtor."

In the later case of Siggers v. Evans (32 Eng. L. & Eq. 139), it was decided that the doctrine that a conveyance of property to trustees, in favor of creditors, operates as a mere power in the hands of mandataries or agents, revocable until communicated to or assented to by the creditors, does not apply where the trustee himself takes a beneficial interest under the deed. And according to the same case, it seems that where a deed of assignment has been executed to a stranger as trustee for creditors, a communication of the trust to a creditor, by reason of which he may not have pursued bis remedy, or his position may have been altered, will render the deed irrevocable by the assignor, without any actual assent by any creditor. In Smith v. Hurst (22 L. J. [N. S.] Chan. 286; s c. 15 Eng. L. & Eq. 520), it was held that a deed of arrangement between a debtor and one of his creditors, conveying all the property of the debtor to the creditor, and which deed the debtor has power to revoke and alter at any time, and attempts to use as a shield to protect himself against the claims of his other creditors, is fraudulent and void against creditors whose interests are affected by the deed, notwithstanding the deed, upon the face of it, purports to be for the benefit of all the creditors. Such a deed is, in truth, a deed for the benefit of the debtor; and if a creditor accepts it, he takes it not for his own benefit, but for the purpose of carrying out the views and objects of the debtor, in fraud of the other creditors.

1 "No assignment or conveyance made by any insolvent debtor to assignees or trustees, for the use of any of his creditors, shall be valid and effectual against an attachment or execution, in behalf of any creditor who is not a party to it, unless it is so made as to allow all the creditors of the debtor to become parties to it, if they see fit." Statutes of 1836, c. 238, § 11. This statute has been repealed by that of May 13, 1856. As to the present law of Massachusetts, see ante, p. 32.

2

Parsons, C. J., in Widgery v. Haskell, 5 Mass. 144; and in Stevens v. Bell, 6 Id. 339; see, also, the opinion of Shaw, C. J., in Edwards v. Mitchell, 1 Gray, 239, 240, 241; May v. Wannemacker, 111 Mass. 102; Pierce v. O'Brien, 129 Id.

314.

2

become parties.1 In New York, it has been expressly held to be not necessary that the creditors should be parties; and the same has been held in Missouri, if the assignment contains no provisions prejudicial to their interests; otherwise, it is of no avail until executed by them.*

Assignments are also sometimes expressly made for the benefit of such creditors as shall become parties to them, without reference to the requirements of any statute. In these cases it is, of course, necessary for the creditors to become parties, in order to obtain the benefit of the assignment.

Creditors may become parties to an assignment in other ways than by actually signing the instrument; as by coming in under it and filing their claims, for the purpose of obtain ing a dividend."

The effect of thus becoming parties will be considered hereafter."

§ 126. Writing, when Necessary. In considering how an assignment should be made, the necessity of writing to its validity occurs as a preliminary and most important inquiry. Special or particular assignments are usually evidenced by some written instrument, more or less formal in its character; and in many cases a writing is expressly required by law to give them validity. In other cases, how

1 Revised Statutes (ed. 1871), p. 543, § 4. It had been previously decided in that State, that if no creditor became a party, the assignment, though executed by the assignor and assignee, was invalid as against an attachment of the property assigned as the property of the debtor. Carr v. Dole, 18 Me. 358; Whitney v. Kelley, 67 Me. 377.

2

Cunningham v. Freeborn, 11 Wend. 240. So in Vermont. Hall v. Denison, 17 Vt. 310.

'Duval v. Raisin, 7 Mo. 440.

Drake v. Rogers, 6 Mo. 317; Swearingen v. Slicer, 5 Id. 240; but see Gale v. Mensing, 20 Mo. 461.

5

See Bodley v. Goodrich, 7 How. 276.

"See post, Chap. XLII.

'An assignment, it is said, does not necessarily imply or require writing; and when alleged of any subject, it should always be construed in connection with the law of transfer applicable to that particular subject-matter. Hutchings v. Low, 1 Green (N. J.), 246. Assignments are very generally made in writing, but they are by no means exclusively so made. Scott, J., in Edison v. Frazier, 4 Eng. (Ark.) 220, 221; and see further, as to the import of the term, ante, p. 3, n. 1.

ever, a mere delivery of the subject assigned is sufficient to pass the property; and in equity many assignments are held good which are not evidenced by any writing.1

In regard to general assignments, or those usually executed by insolvent debtors, a stricter rule prevails, and a writing of some kind is generally required, not only as a security against fraud and collusion, but as a necessary means of giving effect to the assignments themselves. The very nature of the transfer, especially when in the form of a trust, comprehending various descriptions of property, and accom panied by directions more or less numerous and complicated, as to the mode of distribution, renders a written instrument important. Where real property is either wholly or in part the subject of the assignment, a writing is expressly required by statute. The provision of the English statute of frauds, requiring a writing signed by the party to give effect to transfers of estates or interests in lands, includes assignments as well as other conveyances; and this is said to have been either expressly adopted, or assumed as law throughout the

8

1 See ante, p. 3. In Boyden v. Moore (11 Pick. 362), where a debtor delivered certain chattels to a creditor, saying, "Take the property, do the best you can with it, pay yourself, and pay the rest to my creditors," it was considered by the court as an assignment, and sustained in favor of the assignee. In Loftin v. Lyon (22 Ala.. 540), a debtor had delivered to his creditor a quantity of cotton, to be sold, and the proceeds appropriated, first, to the payment of his own debt, and the balance to be paid to other creditors named, in extinguishment of their debts; and see Higginbottom v. Peyton, 3 Rich. Eq. 398; Gordon v. Green, 10 Ga. 534; Lockwood v. Canfield, 20 Ill. 126; Newby v. Hill, 2 Metc. (Ky.) 530. In the case of Foster v. Lowell (4 Mass. 308), an assignment of a very simple characterbeing an agreement by the debtor that a third person having money belonging to him in his hands, should retain it for the use of a particular creditor-was held void, on the ground of its not being reduced to writing. But see the reporter's note to the case.

2 Hertle v. McDonald, 2 Md. Ch. Dec. 128; but see Dale v. Olmstead, 36 Ill. 150.

All estates and interests in lands (except leases not exceeding three years) created, granted or assigned, by livery and seizin only, or by parol, and not in writing, and signed by the party, were declared to have no greater force or effect than estates at will only. Stat. 19 Car. II, c. 3, §§ 1, 2; 4 Kent's Com. [450] 491.

A verbal assignment of both real and personal property is invalid. Such an attempted transfer of real estate alone would of course be in violation of the Statute of Frauds; and where the agreement includes both real and personal property it will be regarded as entire, and come within the statute. Lill v. Brant, 6 Ill. App. (Bradw.) 366.

United States.1 In New York it is made to apply not only to every estate and interest in land, but to every trust or power concerning the same, and to every grant or assignment of any trust. And in most of the States, both assignments of interest in lands, and declarations or creations of trust in lands, are expressly required to be in writing.*

5

6

In many of the States, it is expressly required by statute that an assignment for the benefit of creditors should be in writing, and further formalities are in some instances prescribed. Thus, in Connecticut and Minnesota, transfers, unless so made, will be void. And in New York, a writing is required, and this direction of the statute has been held to be mandatory, and a failure to comply with it will render the assignment invalid. And in Indiana,' a general assignment must be made by indenture, containing a full description of all the real estate assigned and accompanied by a schedule containing a particular enumeration and description of all the personal property assigned; similarly in Oregon.10 § 127. Form of Assignment.—In regard to the particu

1 Kent's Com. ubi supra.

Rev. Stat. [137] 145, § 2.

3 Rev. Stat. (7th ed.) 2326, § 6.

See Rev. Stat. of Me. (ed. 1871), p. 560, c. 73, § 11; Rev. Stat. of N. H. (ed. 1867), p. 252, tit. 15, c. 121, §§ 12, 13; Gen. Laws of N. H. (ed. 1878), p. 324; Rev. Stat. of Vt. (ed. 1862), p. 450, tit. 19, § 21; Rev. Laws of Vt. (1880), §§ 1932, 1933; Rev. Stat. of Mass. (ed. 1860), p. 502, c. 100, §§ 19, 20; Pub. Stat. of Mass. (1882), p. 792; Rev. Stat. of N. J. (ed. 1874), p. 503, tit. 17, c. 1, §§ 10, 11; Rev. of N. J. (1878), p. 444; Purdon's Dig. (Brightley), vol. I, p. 724, § 3; Swan's Stat. of Ohio (ed. 1841), p. 423, c. 52, § 4: R. S. of Ohio (1880), § 498; Rev. Stat. of Ind. (ed. 1870), vol. I, p. 651, §§ 1, 2, 3; ed. 1881 (Hurd), p. 559, c. 59, § 9; Rev. Stat. of Ill. (cd. 1874), p. 541, c. 59, § 9; R. S. of Ill. (1881), p. 742; Com. Law of Mich. (ed. 1871), pp. 1455, 1456; Rev. Stat. of Wis. (ed. 1871), p. 1254; R. S. of Wis. (1878), § 2302; Stat. of Ga. (Prince's Dig.) 915; Civil Code of La. art. 2415; Civil Code of Cal. (Hittell), § 5852. In Texas it is not made necessary by the statute of frauds that an agreement creating a trust should be in writing. James v. Fulerod, 5 Tex. 512.

* Gen. Stat. of Conn. (Rev. 1875), p. 378; see Whitaker v. Gart, 18 Conn. 522; and as to trusts, see Beers v. Lyon, 21 Conn. 604; Hawey v. Mix, 24 Conn. 406.

Laws of 1876, c. 44; Stat. of Minn. (1878), p. 544. Previously assignments of personal property accompanied with delivery were not required to be in writing. Conrad v. Marcotte, 23 Minn. 55; but see Hoopes v. Knell, 31 Md. 550. 'Laws of 1877, c. 466, § 2; 3 Rev. Stat. (7th ed.) p. 2276.

Hardman v. Bowen, 39 N. Y. 196; Britton v. Lorenz, 45 N. Y. 51; s. c. 3 Daly, 23; Kercheis v. Schloss, 49 How. Pr. 284.

Stat. of Ind. (Rev. 1876), vol. I, p. 142.

10 Laws of 1878, p. 37.