Opinion
Decided: February 12, 1897.
INSOLVENT DEBTORS — Assignment. The decision of the court below is reversed and this cause remanded for the reasons announced in the case of Rebecca Smith et al. v. J. H. Baker et al., decided at this term, p. 326 this volume.
Error from the District Court of Cleveland County.
Action commenced by defendants in error in the district court of Cleveland county, by petition, against the plaintiffs in error, seeking to have certain chattel mortgages, set forth in said petition, declared to be and to constitute a general assignment for the benefit of creditors, and asking the court to appoint a receiver for the stock of goods conveyed by said mortgages and to restrain the plaintiffs in error, as mortgagees, from selling said stock of goods. The court below granted the injunction as prayed, appointed a receiver to take charge of said goods, and on the fourteenth day of May, 1896, found upon the issues in said cause, for the plaintiff therein, defendants in error, and held the said mortgages to constitute a general assignment for the benefit of creditors. From this judgment, the plaintiffs in error duly appealed and the cause is brought to this court for review.
B. F. Williams, W. M. Newell, John I. Dille and J. H. Burford, for plaintiffs in error.
Botsford Brewer, Fisher Hennessey and Douglas Douglas, for defendants in error.
The opinion of the court was delivered by
Defendants in error have filed a motion to dismiss the appeal in this case upon several grounds which we deem it unnecessary to state or discuss, the same being untenable. The facts stated in the record in this cause are such as to present the identical question, only, which was presented in the case of Rebecca A. Smith et al. v. J. H. Baker et al., decided by this court at this term, namely: Whether chattel mortgages or other conveyances, made by an insolvent and failing debtor, of all, or substantially all, his property, in good faith, and in payment of subsisting bona fide indebtedness, to one or more of his creditors, to the exclusion of all other creditors, constitutes a general assignment for the benefit of creditors, under the general assignment law; and whether a court of equity, upon such facts, may decree such mortgages to have the effect of an assignment in trust for the benefit of all the creditors of such insolvent debtor.
The decision of this court in the case of Rebecca A. Smith et al. v. J. H. Baker et al., being decisive of the only point involved in this cause, is held to be conclusive herein and for the error of the court below in holding and adjudging said mortgages to be an assignment in trust, under the assignment law, this cause is reversed and remanded with instructions to the court below to dismiss the same.
Keaton, J., who was of counsel, not sitting; Dale, C. J., and McAtee, J., concurring; Bierer, J. dissenting.