« ForrigeFortsett »
In witness whereof, we have hereunto subscribed these presents, this day of , one thousand eight hundred and
In the presence of C. M. D. P. Q.
Release to be executed by Party to an Arbitration, when required
in the Award.
Know all men by these presents, That I, A. B., of the of , for and in consideration of the sum of one dollar to
me in hand paid by C. D. of , and in pursuance of an
award made by P. Q., R. S., and T. U., arbitrators between us, the said A. B. and C. D., and bearing date the day of , one thousand eight hundred and , do hereby release, and
forever discharge the said C. D., his heirs, executors, and administrators, of and from all actions, cause and causes of action, suits, controversies, claims, and demands whatsoever, for, or by reason of any matter, cause, or thing, from the beginning of the world down to the day of , one thousand eight hun
dred and . [Insert the date of the submission.]
In witness whereof, I have hereunto set my hand and seal, this day of , 1859. A. B. [l. S.]
In presence of 0. M. D
Assignment iB the transfer, or passing over, of one's right, interest and ownership, in any particular estate, property or thing, to another; which may he done in some instances by a simple delivery of the property, or by a verbal declaration to that effect, accompanied by the intention between the parties, that the one parts with the thing or property, and that the other receives it and becomes the owner thereof.
In general, however, this act is performed by delivering a writing showing the intention of the parties, which writing is itself called an assignment.
An assignment may be a gift, a sale, or a temporary or conditional transfer of ownership or title; and may be made of lands, inheritances, goods, liens, claims, suits, rights—in short, any tiling that is property.
If it be necessary to bring suit upon a claim or other matter which has been assigned or sold, such suit must be brought in the name of the assignee, as the plaintiff. The statutes of this state, and of Oregon and Washington, are uniform, in requiring every action to be prosecuted in the name of the real party in interest, with some exceptions, such as in certain cases of trusts.'
Every assignment, in writing or otherwise, of any estate or interest in lands, or in goods in action, or of any rents or profits issuing therefrom, made with intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, is void.'
Every assignment, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making
'Wood's Dig. art. 789; Statutes O. 89; Stat- • Wood's Dig. art 408: Statutes 0. 52». ntes W. 131.
the same, is void against the creditors, existing or subsequent, of such person.'
The words "assigned to A. B." written on the back of an account, and signed by the assignor, are held to be a sufficient assignment.
An order drawn by a creditor upon his debtor, for the whole amount of his debt, whether accepted or not, is an assignment of such debt.'
Where any interest in land, excepting leases for one year or less, or any trust or power over or concerning lands, or in any manner relating thereto, is assigned, the assignment must be in writing, signed and sealed by the party assigning, or by his agent, lawfully authorized in writing.'
Every grant or assignment, of any existing trust, in land, goods, or things in action, unless in writing, subscribed by the party, or his lawfully authorized agent, is void.4
Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued charge of possession of things sold or assigned, shall be conclusive evidence of fraud, as against the creditors of the vendor or assignor, or subsequent purchasers in good faith; except in cases of contracts of bottomry, respondentia, or assignments, or hypothecations of vessels, or goods at sea, or in foreign states, or out of the state, provided possession of such vessel or goods, be changed as soon as may be after their arrival.'
An assignment of a bond, note, or other instrument for the payment of money, secured by a mortgage, is held in this state to have the effect of a transfer of the mortgage also, the latter being only an incident to the debt.'
The assignment of a thing carries with it all that belongs to it by right of accession—as interest, or rent.
Transfers of stock in a corporation, to be valid as against third parties, must be entered in the books of the company, so as to
1 Wood's Dig. art. 899; Statutes O. 527. » Whoatley v. Strobe, Jan. Term, 1889. 'Wood's Dig. art. 394; Statutes 0. 526. 'Wood's Dig. art. 409; Statutes 0. 559.
» Wood's Dig. art. 408, 404, 406; Statutes O. 627, 528. • 6 Cal. 184.
show the names of the parties, by whom and to whom transferred, the number and designation of the shares, and the date of the transfer.1
General assignments by insolvent debtors, for the benefit of their creditors, being confined to the special statutory proceeding provided in the act of the legislature of California, of 1852, are treated of in tins volume under the head of " Insolvency."
Although under tlus statute, a general assignment of the property of an insolvent debtor in trust for the benefit of creditors, cannot be made by a voluntary assignment at common law, but is limited to the statutory assignment prescribed in that act, yet a debtor may transfer his property directly to his creditor, either absolutely in payment of his debts, or as security by way of mortgage.*
The statutory provisions quoted or mentioned above, except in relation to insolvent debtors, have been enacted almost identically in Oregon.
There being no special legislation prescribing a statutory assignment by insolvent debtors, the common law voluntary assignment may be here briefly considered.
An insolvent debtor may give a preference to one creditor, to the exclusion of all others, provided it be done in good faith; and this even after suit commenced against him by another creditor.
If the assignor reserve to himself the power to revoke the conveyance; or to change the trusts, by giving a preference to other creditors at a future time; or if he direct the surplus, after paying the preferred creditors, to be returned to him; the conveyance will be void. The doctrine is well established, that the debtor must make an unconditional surrender of his effects, for the benefit of those to whom they rightfully belong.
An assignment, made by an insolvent debtor, of all his property, in trust, to pay certain specified creditors, and then, without making provision for the remaining creditors, in trust, to reconvey or reassign the residue to the debtor, is void on its face as to
the creditors not provided for; and proof that there would be no surplus will not make it good.
General assignments by an insolvent debtor, giving preferences to cectain creditors, are upheld reluctantly by our courts, and they must be executed in perfect good faith, and an entire and absolute surrender of the debtor's property must be made for the payment of his debts.
An assignment by an insolvent debtor, in trust, to pay preferred creditors, should not authorize the trustees named therein to sell property on credit.
An assignment for the benefit of creditors, authorizing the assignee, in his discretion, to change the order of preference of the creditors, is fraudulent and void.
"Where an assignment is made for the benefit of creditors, it must be accompanied by immediate delivery, either actual or implfed.
Voluntary conveyances in trust for creditors are regarded with jealousy, but the question of fraudulent intent is always one of fact, and not one of law.
The only general statutory provision upon the subject of assignments in Washington Territory, except as already stated, that actions must be prosecuted in the name of the assignee, is as follows:
All deeds of gift, all conveyances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the existing or subsequent creditors of such person.1
No bill of sale for the transfer of personal property, shall be valid as against existing creditors, or innocent purchasers, where the property is left in the possession of the vendor, unless the said bill of sale be recorded in the auditor's office of the county in which the property is situated, within ten days after such 6ale shall be made.'