The opinion of the court was delivered by
Redfield, Ch. J.
In regard to the construction which is to be put upon the case, there seems to he some difference of opinion [155]*155among the counsel. Rut it seems to us that, as the disclosure is made part of the case, with the accompanying documents, and as no evidence seems to have been introduced in contradiction of it, and as it evidently must have formed the basis of the decision, or of any understanding decision upon the subject, it must be regarded as a part of the case here, and the statements, as facts found; we feel so confident such must have been the understanding of the judge, allowing the exceptions, that if we adopted any different view of the legal construction of the exceptions, we should feel bound to give an opportunity to have the exceptions revised by the judge.
In this view of the case, it seems to us all the assignments must be regarded as void or inoperative, under the statute of 1843. We should not find any difficulty in adopting the view of' the court, in Ingraham v. Wheeler, 6 Conn. 277, and thus conclude that the latter assignment, C and D, which is evidently but one transaction, is not vitiated by-tho former assignments, A and B, which were never rescinded or formally surrendered. These instruments, which, in the language of the statute, were void as to creditors of the assignor, by reason of being general, and one of them also by reason of a resulting trust before providing for all the creditors, probably were not affected with any taint or vice which rendered them incurable. They were, in a more strict sense, imperfect, or defective; and were, on that account, voidable by the creditors of the assignor, as is said in Edwards v. Mitchel, 1 Gray 239, by Shaw, Ch. J., “ such conveyance is not absolutely void, but voidable only by creditors.” And although mu' statute of 1843 uses the term “ void as to creditors,” it is obvious nothing more is intended, than inoperative, or voidable. It is more like the statute of frauds, by which certain contracts are made of no obligation unless in writing. They are‘only defective in this particular. It is a further formality, which is made requisite by the law. This may be done at any time, and it is not needful to wipe out the former ineffectual contract. So, too, in regard to this assignment, the resulting trust, without provision for all the assignor’s creditors, was an omission which the law would not sanction, and which enabled the creditors to avoid it. But the assignment B supplied this defect by providing, in terms, for the payment of all the assignor’s [156]*156debts. This was not only allowable, but it was certainly commendable, and we see no reason why it might not be done by a mere declaration of trust in favor of all the creditors, in addition to the former assignment, without making the whole paper anew. So, too, in regard to the generality of the two first assignments, it was a fact which made the whole contract voidable or inoperative, as to the creditors; but it was a defect which may be cured by excepting some substantial portion of the estate, and leaving it open to attachment. And the fact, that two additional papers were made transfering the same property with certain qualifications, and less general forms of conveyance, shows very clearly that it was the purpose of the assignor and the trustee, to abandon the former contracts, and to make one in conformity to this provision of the statute. But, from the disclosure of the trustee, we do not think it could fairly have been found by the county court, that any substantial part of the property was omitted, or that it was in any such state, being conveyed to the trustee or assignor by a cotemporaneous bill of sale, as to leave the assignment anything but a general assignment, within the decision of this court in Mussey v. Noyes & Co. 26 Vt. 462.
The only remaining question in the case is, whether the assignment was capable of being made operative as to such creditors as assented to it, and thereby make the assignee their trustee. After' some hesitation, we are compelled to believe, notwithstanding the apparent incongruity of admitting that a contract of assignment, void or voidable under the statute, may be so far affirmed by the creditors themselves, as to be binding, not only upon themselves, but good as against the other creditors, as to whom jit was originally void or voidable, that the proposition is maintainable upon the soundest principle.
This is certainly the doctrine maintained in some of the Massachusetts cases refered to in argument, Russell v. Woodward 10 Pick. 408; where it is assumed that, as fast as creditors become parties to a deed of assignment for the benefit of creditors, the trust in their favor is made operative, even against attaching creditors who are not parties, and who are, by consequence, not bound by the assignment in its original form; Edwards v. Mitchel, Supra, and other cases, 1 Gray.
[157]*157And upon careful reflection, I must say that, such a doctrine seems to me altogether consonant to the statute, to the strictest principle, and every .way salutary in its operation.
It is certainly not uncommon, where a contract or proceeding is in terms declared void, as to particular persons, to construe this as synonymous with voidable or inoperative. This is one of the ordinary significations of the term, and more natural than any other, when applied to a subject matter of this kind. These assignments are made inoperative, or in popular language void, as to particular persons. It is obvious, if all the creditors assent, the defect is cured. It could not, with any show of reason, be claimed that, if all the creditors became parties to the instrument, whether by deed or parol, that they would not be bound by it, or that they might, after the trustee had gone on in faith of the arrangement, and collected the fund, and was ready to distribute, any one or more of them, recede from their contract, and hold the property by attachments. This ought not to be so. As is said in Edwards v. Mitchel, the principle, volenti nor fit injuria, applies to such assent. And if the assent of all makes it binding, it is difficult to see why the assent of any less number must not have the same effect, as to them. And this making it binding upon these creditors, it is binding upon the other creditors, if it be such a disposition of the effects as the creditor has a right to make.
The contract, here relied upon, is nothing more than the assignment of property, for the security of certain sureties who, in faith of this assignment, have assumed the debts and paid them. This is certainly such a contract as the law recognizes. It is nothing more than preferring certain creditors, by way of mortgage or pledge of personal property. And the fact that it is done, as to the debtor^ by this instrument which, until assented to by the creditors, is voidable by them, will make no difference. It is good to divest the debtor of the property; and, when assented to by the creditor, it is good as to him, and binds the trustee to retain the property, and faithfully to execute the trust, unless his contract is within the statute of frauds; and we have no difficulty upon this point. The undertaking of the trustee is an original undertaking, upon a new consideration, and, in no sense, for the debt of another. He promised to keep the property for the claimants security. Nobody else [158]*158had assumed any similar undertaking.
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The opinion of the court was delivered by
Redfield, Ch. J.
In regard to the construction which is to be put upon the case, there seems to he some difference of opinion [155]*155among the counsel. Rut it seems to us that, as the disclosure is made part of the case, with the accompanying documents, and as no evidence seems to have been introduced in contradiction of it, and as it evidently must have formed the basis of the decision, or of any understanding decision upon the subject, it must be regarded as a part of the case here, and the statements, as facts found; we feel so confident such must have been the understanding of the judge, allowing the exceptions, that if we adopted any different view of the legal construction of the exceptions, we should feel bound to give an opportunity to have the exceptions revised by the judge.
In this view of the case, it seems to us all the assignments must be regarded as void or inoperative, under the statute of 1843. We should not find any difficulty in adopting the view of' the court, in Ingraham v. Wheeler, 6 Conn. 277, and thus conclude that the latter assignment, C and D, which is evidently but one transaction, is not vitiated by-tho former assignments, A and B, which were never rescinded or formally surrendered. These instruments, which, in the language of the statute, were void as to creditors of the assignor, by reason of being general, and one of them also by reason of a resulting trust before providing for all the creditors, probably were not affected with any taint or vice which rendered them incurable. They were, in a more strict sense, imperfect, or defective; and were, on that account, voidable by the creditors of the assignor, as is said in Edwards v. Mitchel, 1 Gray 239, by Shaw, Ch. J., “ such conveyance is not absolutely void, but voidable only by creditors.” And although mu' statute of 1843 uses the term “ void as to creditors,” it is obvious nothing more is intended, than inoperative, or voidable. It is more like the statute of frauds, by which certain contracts are made of no obligation unless in writing. They are‘only defective in this particular. It is a further formality, which is made requisite by the law. This may be done at any time, and it is not needful to wipe out the former ineffectual contract. So, too, in regard to this assignment, the resulting trust, without provision for all the assignor’s creditors, was an omission which the law would not sanction, and which enabled the creditors to avoid it. But the assignment B supplied this defect by providing, in terms, for the payment of all the assignor’s [156]*156debts. This was not only allowable, but it was certainly commendable, and we see no reason why it might not be done by a mere declaration of trust in favor of all the creditors, in addition to the former assignment, without making the whole paper anew. So, too, in regard to the generality of the two first assignments, it was a fact which made the whole contract voidable or inoperative, as to the creditors; but it was a defect which may be cured by excepting some substantial portion of the estate, and leaving it open to attachment. And the fact, that two additional papers were made transfering the same property with certain qualifications, and less general forms of conveyance, shows very clearly that it was the purpose of the assignor and the trustee, to abandon the former contracts, and to make one in conformity to this provision of the statute. But, from the disclosure of the trustee, we do not think it could fairly have been found by the county court, that any substantial part of the property was omitted, or that it was in any such state, being conveyed to the trustee or assignor by a cotemporaneous bill of sale, as to leave the assignment anything but a general assignment, within the decision of this court in Mussey v. Noyes & Co. 26 Vt. 462.
The only remaining question in the case is, whether the assignment was capable of being made operative as to such creditors as assented to it, and thereby make the assignee their trustee. After' some hesitation, we are compelled to believe, notwithstanding the apparent incongruity of admitting that a contract of assignment, void or voidable under the statute, may be so far affirmed by the creditors themselves, as to be binding, not only upon themselves, but good as against the other creditors, as to whom jit was originally void or voidable, that the proposition is maintainable upon the soundest principle.
This is certainly the doctrine maintained in some of the Massachusetts cases refered to in argument, Russell v. Woodward 10 Pick. 408; where it is assumed that, as fast as creditors become parties to a deed of assignment for the benefit of creditors, the trust in their favor is made operative, even against attaching creditors who are not parties, and who are, by consequence, not bound by the assignment in its original form; Edwards v. Mitchel, Supra, and other cases, 1 Gray.
[157]*157And upon careful reflection, I must say that, such a doctrine seems to me altogether consonant to the statute, to the strictest principle, and every .way salutary in its operation.
It is certainly not uncommon, where a contract or proceeding is in terms declared void, as to particular persons, to construe this as synonymous with voidable or inoperative. This is one of the ordinary significations of the term, and more natural than any other, when applied to a subject matter of this kind. These assignments are made inoperative, or in popular language void, as to particular persons. It is obvious, if all the creditors assent, the defect is cured. It could not, with any show of reason, be claimed that, if all the creditors became parties to the instrument, whether by deed or parol, that they would not be bound by it, or that they might, after the trustee had gone on in faith of the arrangement, and collected the fund, and was ready to distribute, any one or more of them, recede from their contract, and hold the property by attachments. This ought not to be so. As is said in Edwards v. Mitchel, the principle, volenti nor fit injuria, applies to such assent. And if the assent of all makes it binding, it is difficult to see why the assent of any less number must not have the same effect, as to them. And this making it binding upon these creditors, it is binding upon the other creditors, if it be such a disposition of the effects as the creditor has a right to make.
The contract, here relied upon, is nothing more than the assignment of property, for the security of certain sureties who, in faith of this assignment, have assumed the debts and paid them. This is certainly such a contract as the law recognizes. It is nothing more than preferring certain creditors, by way of mortgage or pledge of personal property. And the fact that it is done, as to the debtor^ by this instrument which, until assented to by the creditors, is voidable by them, will make no difference. It is good to divest the debtor of the property; and, when assented to by the creditor, it is good as to him, and binds the trustee to retain the property, and faithfully to execute the trust, unless his contract is within the statute of frauds; and we have no difficulty upon this point. The undertaking of the trustee is an original undertaking, upon a new consideration, and, in no sense, for the debt of another. He promised to keep the property for the claimants security. Nobody else [158]*158had assumed any similar undertaking. This was not a collateral promise. If it were, a third person who undertakes to keep property of one person, to save a debt to.another, could never be called to an account, unless the undertaking was in writing. But no one ever entertained any such belief. There is no duty upon the trustee which is not new and original, and without any other similar duty upon another, to which it is collateral. The case of a trustee who owes a debt to the principal debtor and promises, by parol merely, and without any new consideration, or being released by the principal debtor, to pay it to the claimant, is certainly not, in any sense, analagous to the present.
It will be obvious, that the view here adopted is possibly, to. some extent, at variance with one line of argument adopted by nre,. in my opinion in Mussey v. Noyes & Co. But I have no occasion here to vindicate the correctness of what I may have said in that case. I adopted the view of the New York cases upon that subject, as I there say, contrary to my convictions of the justice and propriety of the case ; and if the view we now take is, in any sense,, in conflict with any of the views there put forth, which is not altogether certain, I must say, that the New England cases upon this subject, to the extent necessary to be here adopted, seem to us altogether sound. And had precisely the same view been taken of the subject in Noyes v. Mussey, the result must there have been, the same, in all respects, that it was.
This case may very properly be decided upon the views adopted in Bradley & Co. v. Dow & Trustees, one year since, in this county, that as the plaintiffs here attempt to charge the trustee under the statute, they recognize the assignment from the debtor to him, as creating a valid trust, sufficient to enable him to hold the property under the statute; and while they attempt to • charge the trustee under the statute, they must be content to allow him all the rights which the statute accords to him, one of which is to retain enough to pay what the principal debtor owes him. And no question has ever been made, that he might, under this provision, retain any amount of property or money which he had become legally bound to pay to any third party, on account of the principal debtor, before the service of the trustee process.
It "would seem, from the finding of the court upon the issue [159]*159joined, that a sufficient trust, in favor of the claimants, was created by the contract of the parties, altogether independent of the assignment, to bind the trustee to hold the property for them. But we think it not very material, whether the trust is under the assignment, or independent of it. The creditors, all of them, so long as they acquiesce in the doings of the assignee, ought to be bound by it; and they must also be bound by any new and legal obligations which the assignee shall assume after the assignment, and before the service of the trustee process as much as by his proceedings .under the assignment.
We have not been able to discover any sufficient reason, why the decision of the county court, in admitting the claimants to become parties to the suit, was not in strict compliance with the statute. “ If it shall appear that any goods, effects or credits in the hands of any supposed trustee are claimed by any other person, by force of an assignment of the principal debtor, or otherwise, the court may permit such claimant to appear.”
Judgment affirmed.