Bessant v. Levy, Price & Co.

1897 OK 3, 49 P. 1118, 5 Okla. 340, 1897 Okla. LEXIS 70

• Court: Supreme Court of Oklahoma
• Decided: February 12, 1897
• Status: Published

Opinion

The opinion of the court was delivered by

Tarsney, J.:

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.