MULLER V. NORTON, 132 U. S. 501 (1889)

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U.S. Supreme Court

Muller v. Norton, 132 U.S. 501 (1889)

Muller v. Norton

No. 91

Argued November 8, 11, 1889

Decided December 9, 1889

132 U.S. 501


Cunningham v. Norton, 125 U. S. 77, affirmed to the point that the act of the Legislature of Texas of March 24, 1879, in regard to assignments by insolvent debtors for the benefit of their creditors was intended to favor such assignments, and that a provision in such an assignment, void in itself, did not necessarily vitiate the assignment, or prevent its execution for the benefit of creditors.

A provision in an assignment for the benefit of creditors that the assignee shall at once take possession of all the assigned property "and convert the same into cash" as soon as and upon the best terms possible can hardly be construed into a discretionary authority to sell on credit.

In Texas, an assignment for the benefit of creditors under the statute may be made to more than one assignee.

This is an action of trespass brought in the court below by Frederick Muller and Adolph Jacobs, assignees of the firm of Louis Goldsal & Co., of Denison Texas, against

Page 132 U. S. 502

Anthony B. Norton, the United States marshal for the Northern District of Texas, and the sureties on his official bond for levying upon and seizing, under certain attachment suits in that court, the goods, wares, and merchandise of said firm, which had been assigned to the plaintiffs.

The plaintiffs in their petition set up the fact of the assignment by virtue of which they assert title to the property, reciting the main portions of the deed at length, set out the details of the various levies under the attachment suits, and prayed judgment for the amount and value of he goods levied on, which was alleged to be something over $34,000. Upon demurrer to the petition, the court below held the deed of assignment null and void, and accordingly rendered a judgment in favor of the defendants. 19 F.7d 9. To reverse that judgment this writ of error is prosecuted.

The deed of assignment was as follows:

"Know all men by these presents that we, Louis Goldsal and Benjamin Hassberg, doing business as merchants in Denison Grayson County, Texas, under the firm name and style of 'Louis Goldsal & Co.,' for and in consideration of the sum of one dollar to us in hand paid by Fred. Muller and A. Jacobs, of same place, the receipt of which is hereby acknowledged, and for the further purposes and considerations hereinafter stated, have this day assigned, bargained, sold, and conveyed, and by these presents do assign, bargain, sell, and convey, unto the said Fred. Muller and A. Jacobs all the property of every kind owned by us or either of us, individually or as a firm, either real, personal, or mixed, said property consisting of our stock of merchandise situated in our place of business, known as 'Nos. 204 & 206, south side, Main Street,' in Denison Texas, being composed of dry goods, clothing, boots, shoes, hats, caps, trunks, valises, gents' furnishing goods, showcases, book accounts etc., worth about twenty-seven thousand dollars, and all other property owned by us or either of us not herein mentioned, except such of our, or either of our, property as is exempt from execution by the laws of the State of Texas, and no other, to have and to hold unto them, the said Fred. Muller and A. Jacobs, their assigns and successors, forever.

Page 132 U. S. 503

This conveyance is made, however, for the following purposes, to-wit: we, the said Louis Goldsal and Benjamin Hassberg, doing business as aforesaid under the firm name of 'Louis Goldsal & Co.,' are insolvent, being indebted beyond what we or either of us are able to pay, and desire to secure a just and proper distribution of our, and each of our, property among our creditors, and this assignment is made in trust to the said Fred. Muller and A. Jacobs for the benefit of such of our creditors only as will consent to accept their proportional share of our estate and discharge us from their respective claims, and for said purpose, the said Fred. Muller and A. Jacobs are hereby authorized and directed to take possession at once of all the property above conveyed, and convert the same into cash as soon and upon the best terms possible for the best interest of our creditors, and execute and deliver all necessary conveyances therefor to the purchasers, and to collect such of the claims due us or either of us as are collectible, and to bring and prosecute such suits therefor as may be necessary, and to execute and deliver all proper receipts, releases, and discharges to our said debtors on the payment of said claims, and to do and perform each and every act and thing whatsoever requisite, necessary, and proper for them to do in and about the premises for the proper and lawful administration of this trust in accordance with the law, and the said Fred. Muller and A. Jacobs shall pay the proceeds of our said property according to law to each of our creditors as shall legally consent to accept their proportional share of our estates, property, and effects as aforesaid, and discharge us from their respective claim, and no others, he first paying the expenses of administering this trust, and a reasonable compensation to himself for his services. "

Page 132 U. S. 505

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