Talcott, P. J.
This is an action brought against the sheriff of Steuben county for the seizing and conversion of [459]*459certain personal property, constituting a stock of goods with which one Ward B. Van Housen had been carrying on business, a merchant at Howard in said county.
On the twenty-seventh day of November, the said Van Housen, being pressed by his creditors, made and executed an assignment to the plaintiff, of all his goods and effects for the benefit of all his creditors fro rata, and the plaintiff accepted the said assignment and gave the necessary security under the statute, and assumed to go on and sell and dispose of the said goods and merchandise by virtue of the said assignment, and while he was so engaged the defendant, as sheriff of the county and by virtue of several executions to him issued and delivered, levied upon so much of the said stock as remained unsold, and thereafter proceeded to sell so much thereof as was necessary to realize the amount of the said executions.
The assignment to the plaintiff was upon the following trusts and conditions:
“ First. To pay the costs and charges of these presents and the expenses of executing the trust declared and set forth herein. To distribute and pay the remainder of said proceeds to all the creditors of the said party of the first part, for all debts and liabilities which the said party of the first part may be owing or indebted to any person whatever; provided, however, that if there is not sufficient funds for. the payment of all the debts of the said party of the first part, then the said debts are to be paid fro rata, or in proportion to their respective demands.
“ Third.-That the party of the second part may have the right to compromise with the creditors of the party of the first part for all his debts and liabilities which the party of the first part may be owing or indebted to any person, or if, in the opinion of the second party, it would be advantageous to the party of the first part and to the creditors of the party of the first part.
“The rest, residue and remainder, if any there be after paying said costs, charges, expenses and debts as aforesaid, the [460]*460said party of the second part is to pay over to the said party of the first part, his executors, administrators or assigns.”
• Sundry objections are made to the validity of this assignment. It is urged that the assignment is void because it does not confine the distribution of the amount realized from the assigned property to the payment of such debts and claims as existed against the assignor at the time of the assignment, but authorizes the payment of debts which might be afterwards contracted by the assignor. If this be the true construction! of the assignment it would undoubtedly be void for that, reason; but it is doubtful whether this can be the true meaning and construction of the instrument.
The doctrine applied to these assignments, like other instruments and conveyances, is that if two constructions are possible, one of which renders the instrument void and the other renders it valid, that construction is to be adopted which makes it consistent with law, wires magis valeut guamgpereot, and we think it reasonable to construe this assignment as relating to the present tense and to the debts and liabilities of the assignor which existed or had been incurred at or before the making of the assignment (Brainard agt. Dunning, 30 N. Y., 211; Townsend agt. Stearns, 32 N. Y., 209-214).
The clause, however, by which the assignee is authorized to compound with the creditors of the assignor for any sums for which he may be indebted to any person seems to fall within the condemnation of the adjudged cases, especially the leading case of Wakeman agt. Grover (4 Paige, 23) and Grover agt. Wakeman (11 Wend., 187); see, also, Boardman agt. Holliday (10 Paige, 227) and Dunham agt. Waterman (17 N. Y., 9). .
If, as a matter of fact, it appears that the intent of the assignor in making the assignment was to enable him to make a compromise with his creditors, the assignment is fraudulent and void, though the terms of the instrument do not expressly empower the assignee to make compromises, and where the authority to do the act is conferred in express terms by the [461]*461assignment itself, it must be equally void ( Works agt. Ellis, 50 Barb., 512; Bennett agt. Ellison, 23 Min., 242).
It has a tendency to coerce the creditors to accept less than the full amount of their debts and to release the debtor. The assignee in this assignment is given the right to use this power if, in his opinion, it would promote the interests of the assignor and his creditors, and the assignee is not permitted to show that he did not intend to avail himself of this power or use this discretion (Barney agt. Griffin, 2 Comst., 365; Goodrich agt. Downs, 6 Hill, 438).
True, a debtor, while he remains in the possession and control of his property, may compromise with any or all of his creditors, but when he makes an assignment of all his property he has put his property out of his hands and possession, so as to be screened from the process of the law by which collection can be enforced, and being beyond the reach of legal process he may the more easily operate upon the fears of his creditors, and induce compromises by them which they might not submit to if his property were in his own possession and open to the action of legal process. “ The only ground upon which the validity of voluntary assignments can rest is, that they contemplate nothing but a distribution of the debtor’s property to his creditors in some way.” As was said by senator Tracy in,Grover agt. Wakeman (supra), “the only safe rule is to regard every assignment which operates to delay creditors for any purpose not distinctly calculated to promote their interests, as contrary to the statute of frauds.” We are, therefore, of the opinion that the assignment in this instance was void upon its face, as calculated to hinder, delay and defraud the creditors of the assignor.
We think, also, that the assignment in this instance, was probably void by reason of a provision contained in it and not before quoted, viz.: That part of the assignment which, in authorizing the assignee to collect the debts and accounts due to the assignor, empowers him “ when the party of the second part shall deem it expedient so to do,” to take a part [462]*462of the whole debt, in other words, conferring upon the assignee the power to compound for the debts due to the assignor, if he (the assignee) shall deem it expedient. Though an assignee may exercise such a discretion in a proper case, still, on the settlement of his accounts, his action in that respect is open to the examination of the creditors and of the court, and may by them be challenged for negligence, improvidence or interested motives; whereas, by this assignment it seems to have been intended that the “ discretion” of the assignee shall solely determine the question whether he will accept a part instead of a whole of the debt due to the assignor, and to substitute such discretion as the final and sole arbiter in the premises in place of the rules of law and the opinion of the courts (Townsend agt. Stearns, 32 N.
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Talcott, P. J.
This is an action brought against the sheriff of Steuben county for the seizing and conversion of [459]*459certain personal property, constituting a stock of goods with which one Ward B. Van Housen had been carrying on business, a merchant at Howard in said county.
On the twenty-seventh day of November, the said Van Housen, being pressed by his creditors, made and executed an assignment to the plaintiff, of all his goods and effects for the benefit of all his creditors fro rata, and the plaintiff accepted the said assignment and gave the necessary security under the statute, and assumed to go on and sell and dispose of the said goods and merchandise by virtue of the said assignment, and while he was so engaged the defendant, as sheriff of the county and by virtue of several executions to him issued and delivered, levied upon so much of the said stock as remained unsold, and thereafter proceeded to sell so much thereof as was necessary to realize the amount of the said executions.
The assignment to the plaintiff was upon the following trusts and conditions:
“ First. To pay the costs and charges of these presents and the expenses of executing the trust declared and set forth herein. To distribute and pay the remainder of said proceeds to all the creditors of the said party of the first part, for all debts and liabilities which the said party of the first part may be owing or indebted to any person whatever; provided, however, that if there is not sufficient funds for. the payment of all the debts of the said party of the first part, then the said debts are to be paid fro rata, or in proportion to their respective demands.
“ Third.-That the party of the second part may have the right to compromise with the creditors of the party of the first part for all his debts and liabilities which the party of the first part may be owing or indebted to any person, or if, in the opinion of the second party, it would be advantageous to the party of the first part and to the creditors of the party of the first part.
“The rest, residue and remainder, if any there be after paying said costs, charges, expenses and debts as aforesaid, the [460]*460said party of the second part is to pay over to the said party of the first part, his executors, administrators or assigns.”
• Sundry objections are made to the validity of this assignment. It is urged that the assignment is void because it does not confine the distribution of the amount realized from the assigned property to the payment of such debts and claims as existed against the assignor at the time of the assignment, but authorizes the payment of debts which might be afterwards contracted by the assignor. If this be the true construction! of the assignment it would undoubtedly be void for that, reason; but it is doubtful whether this can be the true meaning and construction of the instrument.
The doctrine applied to these assignments, like other instruments and conveyances, is that if two constructions are possible, one of which renders the instrument void and the other renders it valid, that construction is to be adopted which makes it consistent with law, wires magis valeut guamgpereot, and we think it reasonable to construe this assignment as relating to the present tense and to the debts and liabilities of the assignor which existed or had been incurred at or before the making of the assignment (Brainard agt. Dunning, 30 N. Y., 211; Townsend agt. Stearns, 32 N. Y., 209-214).
The clause, however, by which the assignee is authorized to compound with the creditors of the assignor for any sums for which he may be indebted to any person seems to fall within the condemnation of the adjudged cases, especially the leading case of Wakeman agt. Grover (4 Paige, 23) and Grover agt. Wakeman (11 Wend., 187); see, also, Boardman agt. Holliday (10 Paige, 227) and Dunham agt. Waterman (17 N. Y., 9). .
If, as a matter of fact, it appears that the intent of the assignor in making the assignment was to enable him to make a compromise with his creditors, the assignment is fraudulent and void, though the terms of the instrument do not expressly empower the assignee to make compromises, and where the authority to do the act is conferred in express terms by the [461]*461assignment itself, it must be equally void ( Works agt. Ellis, 50 Barb., 512; Bennett agt. Ellison, 23 Min., 242).
It has a tendency to coerce the creditors to accept less than the full amount of their debts and to release the debtor. The assignee in this assignment is given the right to use this power if, in his opinion, it would promote the interests of the assignor and his creditors, and the assignee is not permitted to show that he did not intend to avail himself of this power or use this discretion (Barney agt. Griffin, 2 Comst., 365; Goodrich agt. Downs, 6 Hill, 438).
True, a debtor, while he remains in the possession and control of his property, may compromise with any or all of his creditors, but when he makes an assignment of all his property he has put his property out of his hands and possession, so as to be screened from the process of the law by which collection can be enforced, and being beyond the reach of legal process he may the more easily operate upon the fears of his creditors, and induce compromises by them which they might not submit to if his property were in his own possession and open to the action of legal process. “ The only ground upon which the validity of voluntary assignments can rest is, that they contemplate nothing but a distribution of the debtor’s property to his creditors in some way.” As was said by senator Tracy in,Grover agt. Wakeman (supra), “the only safe rule is to regard every assignment which operates to delay creditors for any purpose not distinctly calculated to promote their interests, as contrary to the statute of frauds.” We are, therefore, of the opinion that the assignment in this instance was void upon its face, as calculated to hinder, delay and defraud the creditors of the assignor.
We think, also, that the assignment in this instance, was probably void by reason of a provision contained in it and not before quoted, viz.: That part of the assignment which, in authorizing the assignee to collect the debts and accounts due to the assignor, empowers him “ when the party of the second part shall deem it expedient so to do,” to take a part [462]*462of the whole debt, in other words, conferring upon the assignee the power to compound for the debts due to the assignor, if he (the assignee) shall deem it expedient. Though an assignee may exercise such a discretion in a proper case, still, on the settlement of his accounts, his action in that respect is open to the examination of the creditors and of the court, and may by them be challenged for negligence, improvidence or interested motives; whereas, by this assignment it seems to have been intended that the “ discretion” of the assignee shall solely determine the question whether he will accept a part instead of a whole of the debt due to the assignor, and to substitute such discretion as the final and sole arbiter in the premises in place of the rules of law and the opinion of the courts (Townsend agt. Stearns, 32 N. Y., 215, 216).
It seems that the plaintiff, as he claims, with a view of aiding the sale of the balance of the stock, had purchased a small quantity of sugar, some kerosene and a chest of tea, which he had added to the stock and which at the time of the levy was mingled with the residue of the stock and was being sold by Yan Housen and the plaintiff indiscriminately, as part of the assigned stock. The sheriff was ignorant of the fact that the plaintiff had made those purchases, and of the fact that any portion of the stock belonged to the plaintiff individually. At the time of the levy the plaintiff did not claim any title to any part of the property except the chest of tea which he stated to the sheriff belonged to him individually, saying: “ You have got a chest of tea here which belongs to me individually, I suppose you have no objection to my taking it ? ” And by the sheriff’s consent he took the chest of tea, making no claim to any other property except as assignee. The plaintiff also, before the sale, demanded the property levied on as assignee, saying: “ I came to make a demand of you, as assignee, of those goods.” And the sheriff having no knowledge or intimation of any claim on the part of the plaintiff that any part of the goods seized was claimed by the plaintiff, [463]*463except as assignee of Van Housen under the said assignment, went on and sold the stock, including the said sugar and kerosene, as the property of Van Housen.
The sale was duly advertised, the plaintiff attended the sale and was present at the sale most of the time. He forbid the sale on the executions expressly in his character as the assignee of Van Housen, not claiming or pretending to have any other title to any of the property sold, nor but that the whole of the goods sold were portions of the goods assigned to him under the assignment.
Under these circumstances it would be manifestly inequitable and unjust now to allow the plaintiff, as against the sheriff, to set up that he owned, individually, a small portion of the goods levied on by the sheriff and assumed to be a part of those owned by Van Housen. By his silence on the subject the sheriff was misled and induced to believe that all the property levied on and sold, except the chest of tea, was property embraced in Van Housen’s assignment. “A man who will be silent when his conscience commands him to speak shall not be permitted to speak when his conscience commands him to be silent.”
We think the plaintiff is estopped from claiming, as against the sheriff, that he had any title to the kerosene and sugar, which he claims to have purchased with his own money and to belong to him individually, and not as assignee (Thornton agt. Blanchard, 4 Comst, 303; 3 Hill, 215 ; 15 Wend., 474; 20 id., 268; Dows agt. Morewood, 10 Barb., 183; Smith agt. Hill, 22 Barb., 656; People ex rel. Knapp agt. Reeder, 25 N. Y., 302; Roth agt. Wells, 29 N. Y., 471).
It is not necessary to an equitable estoppel that the party should design to mislead. If his act was calculated to mislead, and actually has mislead, another who acted upon it in good faith, and in the exercise of reasonable care and diligence, under all the circumstances, that is enough (Man. and Traders' Bank agt. Hazard, 30 N. Y., 226; Roth agt. Wells, 29 N. Y., 486).
[464]*464We think, therefore, that the plaintiff was not entitled to recover for the sugar and kerosene claimed to have been added to the stock after the assignment. And the assignment being, in our judgment, void in law, upon its face, the judgment and order denying a new trial must be reversed.
Judgment and order reversed and new trial ordered, costs to abide the event.