of that State.1 In deciding this case it was remarked by the court (Thomas, J.), that "the law of New York, proprio vigore, cannot obtain here. It derives its effect only from the rule of comity, and that rule refuses to give force to laws of other States which directly conflict with the policy of our own." And again, "No comity can require us to give effect to an assignment made in another State, which is not only against our well settled policy but against our direct legis lation, and the effect of which would be to give a preference to citizens of other States over those of our own." 2 1 Zipcey v. Thompson, 1 Gray, 243. See also Guillander v. Howell, 35 N. Y. 657, where a New York assignment with preferences was held inoperative in New Jersey, as against a subsequent attaching creditor resident there. * Id. 245. In the Georgia cases of Stricker v. Tinkham (35 Ga. 177), and Mason v. Stricker (37 Ga. 262), where the assignment executed in Tennessee, covered property in Georgia, and contained preferences which were allowed under the laws of Tennessee but not under the laws of Georgia, as they then stood, the courts of Georgia refused to enforce the contract. In the Missouri case of Kitchen v. Reinsky (42 Mo. 427), which was an assignment executed in New York between citizens of that State, in an action between the assignee and an attaching creditor, Fagg, J., observed: "It is admitted that as to the parties to the assignment, the rule would hold without qualification, that if it is valid by the laws of the State of New York, it is to be regarded here." But the court held the assignment invalid under the New York law. See Bryan v. Brisbin, 26 Mo. 423. But in the case of Thurston v. Rosenfield (42 Mo. 474), where the attaching creditor was a resident of the State where the assignment was made, the court refused to disturb the assignment to the prejudice of the interest of creditors residing in Missouri. CHAPTER XXIV. CONSTRUCTION OF ASSIGNMENTS. After an assignment has gone into operation, courts are frequently called upon to construe it, either as a whole, or in one or more of its clauses or provisions; it being well established that it is the province of the court to pronounce upon the legal effect of a provision in an assignment, and that the submission of such a question to the jury is error.1 Thus, they may be called upon to determine the general character of the instrument, as whether it is to be regarded as an assignment or a mortgage; or to pronounce upon its general effect, as tending to hinder, delay or defraud creditors; or upon the tendency of some particular trust or provision to the same result; or, finally, to interpret some clause, or words, or even a single word, where the object is. not to impeach the validity of the instrument, but to aid its operation according to its proper meaning. The present chapter will be devoted to the subject of construction, so far as it falls under the last of these heads.8 The general rule applied by the courts in the construction of assignments is that well-known one expressed by the maxim, ut res magis valeat quam pereat, the instrument in question shall rather be made available than suffered to fail. Such a construction will be given to the assignment 'Sheldon v. Dodge, 4 Den. 217; Cunningham v. Freeborn, 3 Paige, 557; Goodrich v. Downs, 6 Hill, 438. 2 See ante, p. 13. The construction of assignments, so far as it tends to invalidate them, has been already incidentally noticed in the course of this work, and will be further considered under the head of "Fraudulent and void assignments," post, Chap. XXV. 4 Cowen, J., in Darling v. Rogers, 22 Wend. 483, 488. The learned judge in this case referred to that provision of the New York Revised Statutes which de as will carry into effect the intention of the parties.1 The deed is to be construed by the res gesta; and thus courts are permitted to look to the circumstances and motives which led to its execution, and the objects to be accomplished. Where it is ambiguous in its terms, and admits of two constructions, that interpretation should be given to it which will render it legal and operative, rather than that which will render it illegal and void. Under the maxim above cited, the courts have upheld assignments void in part (as containing a trust prohibited by statute), if otherwise valid; the maxim being held to apply as well where what is void is declared so by statute, as where it is so at common law, unless the prohibitory enactment declares that the deed by which the thing is done shall be void.* The portions or clauses of an assignment which must frequently become the subject of judicial construction or interpretation are those containing a description of the property assigned, and a designation of the debts to be paid; those containing stipulations for a release of the debtor; and those conferring particular powers on the assignee. § 312. Description of Property-what Passes by the Assignment.-Under this head,5 the following cases of construction have been decided. A. & B., partners in trade, conveyed to C. "all their, the said A. & B.'s, real and personal estate, whatsoever and wheresoever, and all their estate, right, title and interest in the same," &c., in trust to clares that in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law. 1 Rev. Stat. [748] 740 (2d ed.), § 2; 3 R. S. (7th ed.) p. 2205. 'Coverdale v. Wilder, 17 Pick. 181. 'Bellamy v. Bellamy's Adm'r, 6 Fla. 62. Sutherland, J., in Grover v. Wakeman, 11 Wend. 187, 192. In Brigham v. Tillinghast (15 Barb. 618), it was said of assignments giving preferences, that so long as they are tolerated, they should receive the same reasonable and fair construction which every agreement inter partes receives from courts of justice. Allen, J., Id. 620. sell and dispose of the same, and to collect the debts due to them, "for the firm aforesaid," and out of the proceeds of the sale, and the money collected, to pay the debts of the partnership. The deeds recited the inability of the firm to pay their debts, but no mention was made of separate debts; throughout the deed the names of the partners were mentioned together; and if a surplus remained after satisfying their creditors, it was directed to be "returned, reconveyed and assigned to the said A. & B., their executors, administra. tors, and assigns." At the date of the deed, the partnership did not hold any real property; but A. was the owner of real estate, in his separate capacity. It was held that the separate real estate of A. passed by the assignment.1 In a case in Connecticut an assignment was made by two partners of "all our real and personal estate, and claims and choses in action of every kind whatsoever and wheresoever situated, except property by law exempt from execution." This was held to carry individual as well as partnership property. On the other hand, separate assignments by the several members of a copartnership, of all their property to the same assignee, carry their firm property. Where an assignment for the benefit of creditors recited that the assignor was willing to assign "all his goods, chattels, and effects," and then proceeded to grant, transfer, &c., "the following named goods and chattels, viz.:" enumerating certain articles of household furniture, agricultural implements, cattle, "bonds and notes," "and other articles of furniture, goods and chattels, and effects, which I now own or possess, excepting only thereout 'so much as is allowed by the insolvent laws to insolvent debtors;" habendum, in trust, to sell the same at public or private sale, and to apply 1 Wharton v. Fisher, 2 S. & R. 178. "Von Wettberg v. Carson, 44 Conn. 287; Coggill v. Botsford, 29 Id. 445. Similarly in a case in Kansas, an assignment executed by partners was held to be general, and to include separate as well as firm property, though where the names of the assignors occur in the deed they are immediately followed by "copartners or "partners," these words being regarded as mere descriptio persona. Williams v. Hadley, 21 Kans. 350; see also Malcolm v. Hodges, 8 Md. 418. Boughton v. Crosby, 47 Conn. 577; Stiness v. Pierce, R. I. Index P, 65. the money arising therefrom to the payment of certain debts, it was held that the terms were broad enough to pass choses in action to the trustee, and therefore that such trustee had the right to control an execution which had issued on a judgment obtained for a debt due to the assignor.1 Real and personal estate was devised to A. in trust, to pay the rents, profits and income to B. during his life, and after the death of B. to convey the same estate to C., his heirs, executors, administrators, and assigns, for his own sole and proper use, without the control of any person whomsoever," and without being subject or liable to his debts, contracts or engagements." During the lifetime of B., C. made an assignment of all his estate and effects to assignees for the benefit of creditors. It was held that his interest under the will passed to the assignees.2 A voluntary assignment was made to trustees, of "the lands and tenements, estate real and personal and mixed, of what nature and kind soever, and wheresoever the same may be, merchandise, vessels, goods, moneys and effects, and debts due, owing or coming due, or belonging" to the assignor. It was held that the assignment would not pass a claim against the United States for wrongfully preventing the assignor, owner of lands in Florida, from cutting and removing the timber therefrom.3 But it has also been held that a clause in an assignment conveying "all that they (the assignors) have in satisfaction of their debts and all debts due" to them, included a demand pending in court against certain railroad companies for damages to a foundry and to an incorporeal hereditament appurtenant thereto.4 5 In a case in Michigan the assignment was of "all his (the debtor's) estate and effects, real and personal, of every 5 'Dowdel v. Hamm, 2 Watts, 61. 'Mayo v. Snead, 78 Ky. (1 Rodm.) 634. 2 Stuckert v. Harvey, 1 Miles, 247. Burrows v. Keays, 37 Mich. 430. (This was an action of trover by the assignee under a foreign insolvent law against the assignor.) |