Taylor, J.:
In the year 1890 the appellants herein as plaintiffs below sued George W. Gibbs, Charles F. Hopkins, Jr. and Theodore H. Livingston, as copartners doing business under the firm name of The St. Johns County Savings Bank and Real Estate Exchange, in assumpsit for a recovery of a money deposit made with said firm, and on January 30th, 1891, recovered final judgment against said firm upon a default for $220.91. Pending the said suit the plaintiffs therein sued out a writ of garnishment and caused the same to be served upon the appellee herein, George A. Crocker, requiring him, in the usual form of such writs, to set forth upon oath what goods and chattels, rights and credits, money or effects were in his hands, custody or control, at the time of the service of such writ or since, belonging to-the said defendant'/firm, and in what sum he was indebted to them. To this writ the garnishee answered, denying that he was indebted to the said firm, or to any of its members, in any sum, and denying that he had in his hands, custody or control any of their property. To this answer of the garnishee the plaintiffs interposed a traverse, and the issue thus joined was submitted to the court for its decision, a jury being waived, by consent and agreement of the parties in writing, upon the following agreed state of facts: 1. The said Susan T. Williams, in a joint action with the said Samiel T. Williams, her husband, against .the said George W. Gibbs, Charles F. Hopkins, Jr., and Theodore H. Livingston, partners, doing a private banking business under the firm name and style of the St. Johns County Savings Bank, has recovered judgment in this court against the said defendants in the sum of $213.18 damages, and $7.73 costs of suit, on the-[69]*69.'30th day of January, A. I). 1891, and at the time of the commencement of said suit, to-wit: the 6th day of November, A. D. 1890, sued out a summons of garnishment to the said George A. Crocker, assignee of the said defendants and individually. 2. The said garnishee has filed his answer, and the same has been traversed. 3. The articles of assignment under which the said garnishee obtained control and custody and .possession of the property of the said defendants are hereto annexed as exhibits A, B and O. 4. That the •said George A. Crocker by virtue of said articles obtained property of the said defendants of the present value of about $1,500. That at the time of the execution of exhibit A, said partners owned and possessed individual property aside from said partnership property, and were indebted individually to divers persons. 5. If the court shall adjudge the said papers purporting to be articles of assignment to be void, then these plaintiffs are entitled to judgment against said Crocker, defendant garnishee, and the court may enter up judgment accordingly, subject to such rights of review, appeal, etc., as the respective parties would have if ■the case had been tried by a jury. 6. The said garnishee has filed the bond, and the assignors the affidavit, as in their belief is required by Chapter 3891 of the laws of Florida, the sufficiency of which the court may pass upon.
The exhibits A, B and C, referred to the court as part of the above agreed statement of fact, with the .■schedules and affidavits thereto, are as follows:
[70]*70Exhibit A.
George W. Gibbs et al., Copartners, to George A.. Crocker.
Assignment for the Benefit of Creditors.
This indenture, made this 31st day of October, A. D. 1890, by and between George W. Gibbs, Charles F. Hopkins, Jr., and Theodore H. Livingston, the two-former of St. Johns county, Fla., ancl the latter of Duval county, Fla., as copartners under the firm and style of the St. Johns County Savings Bank, of the first part, and George A. Crocker, of St. Johns county aforesaid, of the second part, witnesseth: That whereas the aforesaid copartnership firm has become embarrassed, and is no longer able to pay its debt in full, but is desirous of having its property applied ratably to the payment of its debts so far as such property will’ pay the same: Now, in consideration of the premises, and of one dollar to them in band paid by the party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby confessed, the parties of the first part have granted, bargained, sold, conveyed, assigned, transferred and set over, and by these presents do grant, bargain, sell, convey, assign, transfer and set over unto the party of the second part the following described propeidy, to-wit: All the property, both real and personal property, interests, goods, wares, merchandise, credits and things in action, whether legal or equitable, and all the estate of every kind and description whatsoever of the said copartnership firm, the St. Johns County Savings Bank, to have and to hold the same and each and every part thereof to him, his heirs and assigns intrust, nevertheless, to and for the uses and purposes following, to-wit: to ask, demand, receive and sue for and collect, at law or otherwise, in the same manner [71]*71as parties of the first part might or could do in their own right. All debts, dues, claims and demands held or owned by said copartnership firm, against any and all persons or corporations whatsoever, to proceed to dispose of all the property of the said copartnership firm to the best interest of all parties concerned, either at public or private sale, as to him may seem best, and convert the same into money, and to pay and apply the moneys of said firm on hand at the date hereof, and the moneys so collected and received as aforesaid, in the manner following, to-wit: to pay, firstly, the reasonable cost and expense of executing the assignment herein and hereby made, and carrying out the trust herein created; secondly, to pay, out of any sum remaining, all debts owing by said copartnership firm in full, whether the same be due or not. And if there shall not be sufficient moneys to pay all such debts in full, then to apply such moneys in payment of such debts equally and ratably in proportion to the respective amounts thereof; and, thirdly, if after paying’ all the debts and liabilities of said copartnership firm in full, there shall be left any residue of the moneys aforesaid, then to pay such residue in equal and ratable proportions to the parties of the first part hereto, their heirs and assigns; provided, nevertheless, that the party of the second part shall not proceed to dispose of the property hereby assigned, or to collect the debts due to said copartnership firm, or pay out to the creditors of said firm any moneys on hand at the date hereof until he shall have given and filed the bond required in and by section 4 of Chapter 3891 of the laws of Florida. And shall have given notice by publication to the creditors of said firm, and by mail, as required in and by section 6 of Chapter 3891 aforesaid. A schedule of property of said firm, so far as [72]*72now known, is hereby annexed, marked “Ex. A,” and made part hereof. In consideration of the premises, the party of the second part accepts the trust herein reposed in him, and covenants and agrees that he will perform and discharge the duties of assignee herein imposed upon him as herein prescribed and according to law, to the best of his ability. In witness whereof the parties hereto have hereunto set their hands and affixed their seals the day and year first above written.
Ti-ie St. Johns Co. Savings Bank, Seal.
Geo. W. Gibbs, Seal.
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Taylor, J.:
In the year 1890 the appellants herein as plaintiffs below sued George W. Gibbs, Charles F. Hopkins, Jr. and Theodore H. Livingston, as copartners doing business under the firm name of The St. Johns County Savings Bank and Real Estate Exchange, in assumpsit for a recovery of a money deposit made with said firm, and on January 30th, 1891, recovered final judgment against said firm upon a default for $220.91. Pending the said suit the plaintiffs therein sued out a writ of garnishment and caused the same to be served upon the appellee herein, George A. Crocker, requiring him, in the usual form of such writs, to set forth upon oath what goods and chattels, rights and credits, money or effects were in his hands, custody or control, at the time of the service of such writ or since, belonging to-the said defendant'/firm, and in what sum he was indebted to them. To this writ the garnishee answered, denying that he was indebted to the said firm, or to any of its members, in any sum, and denying that he had in his hands, custody or control any of their property. To this answer of the garnishee the plaintiffs interposed a traverse, and the issue thus joined was submitted to the court for its decision, a jury being waived, by consent and agreement of the parties in writing, upon the following agreed state of facts: 1. The said Susan T. Williams, in a joint action with the said Samiel T. Williams, her husband, against .the said George W. Gibbs, Charles F. Hopkins, Jr., and Theodore H. Livingston, partners, doing a private banking business under the firm name and style of the St. Johns County Savings Bank, has recovered judgment in this court against the said defendants in the sum of $213.18 damages, and $7.73 costs of suit, on the-[69]*69.'30th day of January, A. I). 1891, and at the time of the commencement of said suit, to-wit: the 6th day of November, A. D. 1890, sued out a summons of garnishment to the said George A. Crocker, assignee of the said defendants and individually. 2. The said garnishee has filed his answer, and the same has been traversed. 3. The articles of assignment under which the said garnishee obtained control and custody and .possession of the property of the said defendants are hereto annexed as exhibits A, B and O. 4. That the •said George A. Crocker by virtue of said articles obtained property of the said defendants of the present value of about $1,500. That at the time of the execution of exhibit A, said partners owned and possessed individual property aside from said partnership property, and were indebted individually to divers persons. 5. If the court shall adjudge the said papers purporting to be articles of assignment to be void, then these plaintiffs are entitled to judgment against said Crocker, defendant garnishee, and the court may enter up judgment accordingly, subject to such rights of review, appeal, etc., as the respective parties would have if ■the case had been tried by a jury. 6. The said garnishee has filed the bond, and the assignors the affidavit, as in their belief is required by Chapter 3891 of the laws of Florida, the sufficiency of which the court may pass upon.
The exhibits A, B and C, referred to the court as part of the above agreed statement of fact, with the .■schedules and affidavits thereto, are as follows:
[70]*70Exhibit A.
George W. Gibbs et al., Copartners, to George A.. Crocker.
Assignment for the Benefit of Creditors.
This indenture, made this 31st day of October, A. D. 1890, by and between George W. Gibbs, Charles F. Hopkins, Jr., and Theodore H. Livingston, the two-former of St. Johns county, Fla., ancl the latter of Duval county, Fla., as copartners under the firm and style of the St. Johns County Savings Bank, of the first part, and George A. Crocker, of St. Johns county aforesaid, of the second part, witnesseth: That whereas the aforesaid copartnership firm has become embarrassed, and is no longer able to pay its debt in full, but is desirous of having its property applied ratably to the payment of its debts so far as such property will’ pay the same: Now, in consideration of the premises, and of one dollar to them in band paid by the party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby confessed, the parties of the first part have granted, bargained, sold, conveyed, assigned, transferred and set over, and by these presents do grant, bargain, sell, convey, assign, transfer and set over unto the party of the second part the following described propeidy, to-wit: All the property, both real and personal property, interests, goods, wares, merchandise, credits and things in action, whether legal or equitable, and all the estate of every kind and description whatsoever of the said copartnership firm, the St. Johns County Savings Bank, to have and to hold the same and each and every part thereof to him, his heirs and assigns intrust, nevertheless, to and for the uses and purposes following, to-wit: to ask, demand, receive and sue for and collect, at law or otherwise, in the same manner [71]*71as parties of the first part might or could do in their own right. All debts, dues, claims and demands held or owned by said copartnership firm, against any and all persons or corporations whatsoever, to proceed to dispose of all the property of the said copartnership firm to the best interest of all parties concerned, either at public or private sale, as to him may seem best, and convert the same into money, and to pay and apply the moneys of said firm on hand at the date hereof, and the moneys so collected and received as aforesaid, in the manner following, to-wit: to pay, firstly, the reasonable cost and expense of executing the assignment herein and hereby made, and carrying out the trust herein created; secondly, to pay, out of any sum remaining, all debts owing by said copartnership firm in full, whether the same be due or not. And if there shall not be sufficient moneys to pay all such debts in full, then to apply such moneys in payment of such debts equally and ratably in proportion to the respective amounts thereof; and, thirdly, if after paying’ all the debts and liabilities of said copartnership firm in full, there shall be left any residue of the moneys aforesaid, then to pay such residue in equal and ratable proportions to the parties of the first part hereto, their heirs and assigns; provided, nevertheless, that the party of the second part shall not proceed to dispose of the property hereby assigned, or to collect the debts due to said copartnership firm, or pay out to the creditors of said firm any moneys on hand at the date hereof until he shall have given and filed the bond required in and by section 4 of Chapter 3891 of the laws of Florida. And shall have given notice by publication to the creditors of said firm, and by mail, as required in and by section 6 of Chapter 3891 aforesaid. A schedule of property of said firm, so far as [72]*72now known, is hereby annexed, marked “Ex. A,” and made part hereof. In consideration of the premises, the party of the second part accepts the trust herein reposed in him, and covenants and agrees that he will perform and discharge the duties of assignee herein imposed upon him as herein prescribed and according to law, to the best of his ability. In witness whereof the parties hereto have hereunto set their hands and affixed their seals the day and year first above written.
Ti-ie St. Johns Co. Savings Bank, Seal.
Geo. W. Gibbs, Seal.
Chas. F. Hopkins, Jr., Seal.
Theodore H. Livingston, Seal.
George A. Crocker, Seal.
Signed, sealed and delivered in presence of us:
And we certify “in the same manner as parties of the first might or could do in their own right,” interlining page 2, line 8, before execution. Also 23 words referring to Ex. A, interlined page 3 before execution; also ■“able,” page 1, line 13, and Savings, page 1, line 8, and page 2, line 3, inserted before execution.
B. C. Rude,
Henry Gaillard.
On this 21st day of October, A. D. 1890, before me personally came George W. Gibbs, Charles F. Hopkins, Jr., Theodore H. Livingston and George A. Crocker, to me well known, and known to be the same persons described in and who executed the foregoing assignment for the benefit of creditors and acceptance thereof, and duly and severally acknowledged that [73]*73they executed the same. Witness my hand and official ■seal the day and year last above written.
Henby Gaillabd,
Seal. Notary Public.
Ex. A.
Referred to in the annexed assignment. A statement and schedule of the property and assets of the St. Johns County Savings Bank:
Cash and cash items on hand................$ 517.83
Notes, bills and claims against divers persons pf doubtful or in value, nominal value $261.-
05, actual value.......................... 000.00
Notes at U. S. Bank in New York $4,100, deposited as collateral for a debt of $3,500. Amount available as assets for payment of debts.................................... 600.00
Notes secured by mortgages $4700 of nominal value, deduct $200 for insufficient securities, and makers insolvent, leaves as assets available for debts............................ 4,500.00
Good notes and claims unsecured............ 312.00
Eurniture in Bank.......................... 75.00
Safe in bank, value $500, subject to a mortgage of $300, leaves available as assets to pay debts.................................... 200.00
Notes of divers persons, utterly worthless, nominal value $500, estimated value, actual 000.00
Add 2 lots in Buena Esparranza, St. Augustine, held on contract of purchase by T. H. Livingston for the St. Johns County Savings Bank, subject to unpaid purchase price.... 600.00
Total..................................$6,803.00
St. Johns Co. Saviegs Bank.
Geobge W. Gibbs,
Ciiables P. Hopkins, Jr.,
Tiieodobe H. Livingston.
[74]*74Exhibit B.
This indenture made this 8th day of N ovember, A. D. 1890, by and between Charles P. Hopkins, Jr., of St. Johns county, State of Florida, party of the first part, and George A. Crocker, of the same county, party of the second part. Witnesseth: That whereas the-party of the 'first part has become financially embarrassed and unable to pay his debts in full, or as they may become due, but is desirous of having his property applied to the payment of his said debts ratabty in proportion to the several amounts thereof; and whereas said party of the first part is also a member of the copartnership firm known as the St. Johns County Savings Bank, which becoming likewise insolvent,.has made an assignment to said George A. Crockerfor the benefit of copartnership creditors, and it is probable that the copartnership assets will not suffice to pay the firm debts in full, thus leaving a deficiency for which any residue of first party’s estate left after paying his individual debts would be liable, and first party is desirous of having any such residue applied in liquidating any such deficiency: Now, in consideration of the premises, and of one dollar to him in hand paid by the party of the second part, whereof he hereby confesses the receipt, the party of the first part-hath bargained, sold, assigned, transferred, set over, granted and conveyed, and by these presents doth bargain, sell, assign,’ transfer, set over, grant and convey unto the party of the second part all of the property and estate of the party of the first part, both real and personal, wherever situate, and of every kind and. character whatsoever, lands, tenements, hereditaments,. [75]*75goods, chattels, credits and things in action, whether legal or equitable, excepting only such property as is exempted by law from forced sale, to have and hold the-same, and each and every part thereof unto the party of the second part, in trust, nevertheless, to and for-the uses and purposes following, to-wit: to ask, demand, receive, collect and recover, by law or otherwise, in the same manner as party of the first part might or • could do in his own right if this assignment had not been made, all debts owing to party of first part, to - dispose of all the property mentioned in this deed of assignment to the best interests of all parties concerned, either at public or private sale, as to him may seem best,, and convert the same into money, and to pay and apply the moneys received by him from such collections;; and the disposal of such property, plus the moneys of first part on hand at the making of and transferred by this assignment, in manner following, to-wit: Firstly, to pay the- reasonable cost and expense of executing this deed of assignment, and of carrying out the trust thereby imposed upon him; secondly, if .there be any residue left of the moneys received by him as aforesaid after paying such cost and expense, then to pay in full all the just debts of the party of the first part, whether the same be due or not, and if such residue-shall not be sufficient to pay all such debts in full, then to apply such residue in payment thereof ratably,, and in proportion to the several amounts thereof respectively; thirdly, if after paying in full all the just debts of party of first part' there shall be left in the-hands of party of second part any residue of the moneys collected and received by him as aforesaid, then to pay in full the just debts of the copartnership' firm known as the St. Johns County Savings Bank, which shall remain unpaid at the time when such resi- [76]*76- due shall be ascertained, or if such residue shall not be sufficient to pay such debts in full, then to apply such residue in payment thereof ratably in proportion to the several amounts thereof respectively; fourthly, if after paying in full all the matters hereinbefore provided to be paid, there shall be left in the hands of the ■party of the second part any residue of the moneys so ■ collected and received by him as aforesaid, then to pay such residue over to the party of the first part, his heirs, executors or assigns. And to enable the party of the second part the more effectually to carry out the trust herein and hereby created, the party of the first part, hereby makes, constitutes and appoints the party of the second part his true and lawful attorney, in his name, place and stead, or otherwise, as may be proper, to sign, seal, execute and deliver any and all instruments in writing, necessary or proper in the execution of said trust, and to do any and all other acts necessary in the premises to the proper and lawful carrying out of said trust; provided, nevertheless, that nothing herein contained shall direct or require the party of the second part to collect the debts owing to first party, or to dispose of his property as hereinbefore prescribed, until the provisions contained in sections one (1) to six (6) inclusive, of Chapter 3891 of the laws of Florida, have been complied with. In consideration of the premises, the party of the second part ■accepts the assignment herein made, and the trust herein imposed upon him, and covenants and agrees that he will faithfully discharge the duties of assignee herein devolved upon him, to the best of his ability. And the party of the first part has hereunto annexed ■■■a schedule of all property belonging to him at the date hereof, not exempt by law from forced sale, as also of \what he claimed to be so exempt, and having signed [77]*77the same, makes it — marked “Exhibit A” — a part hereof. In witness whereof the parties have hereunto-set their hands and seals the day and year first above-written.
C. F. Hopkins, Jr., Seal.
George A. Crocker, Seal.
Signed, sealed and delivered in presence of us, and we certify “all debts owing to party of first part,” line 20, page 2, before executing.
J. W. Allen,
D. L. Duniiam.
On this 8th day of November, A. D. 1890, before me-personally came Charles F. Hopkins, Jr., and George-A. Crocker, to me well known to be the same persons, described in and who executed the foregoing assignment, and duly and severally acknowledged that they executed the same. Witness my hand and official seal, the day and year last above written.
J. W. Allen,
Seal. Clk. Cir. Ct.
Ex. A.
Schedule of property of Charles F. Hopkins, referred' to in the annexed assignment, so far as the same can be ascertained.
118 acres of land in St. John’s county, in range 29 east, the title to which stands in my wife’s name, but of which I am the equitable owner, and which I am to convey to my said assignee by deed from self and wife, value...........$250. Offi
Dated November 8th, 1890.
40 acres of the above 118 acres is situate in township 7, S. R. 29 E.
[78]*7840 acres in T. 5, S. R. 27 E., and 38 acres in T. 7, S. R. 28 E.
C. F. Hopkins, Jr.
Exhibit C.
This indenture made this 8th day of November, A. D. 1890, by and between George W. Gibbs, of St. Johns -county, State of Florida, party of the first part, and George A. Crocker, of the same county, party of the .second part. .Witnesseth: That whereas the party of the first part has become financially embarrassed and unable to pay his debts in full or as rhey become due, but is desirous of having his property applied to the payment of his said debts ratably in proportion to the several amounts thereof, and whereas said party of the ■ first part is also a member of the copartnership firm known as the St. Johns County Savings Bank, which, becoming likewise insolvent, has made an assignment to said George A. Crocker for the benefit of creditors, . and it is probable that the copartnership assets will not suffice to pay the firm debts in full, thus leaving a ■deficiency for which any residue of first party’s estate left after paying his individual debts would be liable; . and first party is desirous of having any such residue ..applied in liquidating any such deficiency: Now, in -consideration of the premises, and of one dollar to him in hand paid by the party of the second part, whereof he hereby confesses the receipt, the party of the first part hath bargained, sold, assigned, transferred, set -over, granted and conveyed, and by these presents doth bargain, sell, assign, transfer, set over, grant and ■ convey unto the party of the second part all the prop- • erty and estate of the party of the first part, both real [79]*79;and personal, wherever situate, and of every kind and ■character whatsoever, lands, tenements, hereditaments, goods, chattels, credits and things in action, whether legal or equitable, excepting only such property as is ■exempted by law from forced sale; to have and hold the same, and each and every part thereof, unto the said party of the second part, in trust, nevertheless, to .and for the uses and purposes following, to wit: to ask, demand, receive, collect and recover, by law or otherwise, in the same manner as party of the first part might or could do in his own right if this assignment had not ■been made, all debts owing to party of first part, to dispose of all the property mentioned in this deed of assignment, to the best interests of all parties concerned, either at public or private sale, as to him may seem best, and convert the same into money, and to pay and .apply the moneys received by him from such collections and the disposal of such property, plus the moneys of first party on hand at the making of deed transferred by this deed of assignment in manner following, ■to-wit: firstly, to pay the reasonable, proper and lawful cost and expense of executing this deed of assignment and carrying out the trust thereby imposed upon him; secondly, if there be any residue left of the moneys received by him as aforesaid after paying such cost and expense, then to pay in full all the just debts of the party of the first part, whether the same be due or ■not, and if such residue shall not be sufficient to pay •all such debts in full, then to apply such residue in payment thereof ratably and in proportion to the .several amounts thereof respectively; thirdly, if after paying in full all the just debts of the party of the first part, there shall be left in the hands of party ■of second part any residue of the moneys collected and .received by him as aforesaid, then to pay in full the [80]*80just debts of the copartnership firm known as the St_ Johns County Savings Bank, which shall remain unpaid, at the time when such residue shall be ascertained, or if such residue shall not be sufficient to pay such debts in full, then to apply such residue in payment thereof ratably in proportion to the several amounts-thereof respectively; fourthly, if after paying in full all the matters hereinbefore provided to be paid, there shall be left in the hands of the party of the second part any residue of the moneys so collected and received by him as aforesaid, then to pay such residue over to the party of the first part, his heirs, executors- or assigns. And to enable the party of the second part the more effectually to carry out the trust herein and hereby created, the party of the first part hereby makes, constitutes and appoints the party of the second part his true and lawful attorney, in his name, place and stead, or otherwise, as may be proper, to' sign, seal, execute and deliver any and all instruments in writing necessary or proper in the execution of said trust; and to do any and all other acts necessary in the-premises to the proper and lawful carrying out of said trust; provided, nevertheless, that nothing herein contained, shall direct or require the party of the second, part to collect the debts owing to first party or to dispose of his property as hereinbefore prescribed until the provisions contained in sections one (1) to six (6)' inclusive, of Chapter 3891 of the laws of Florida, have been complied with. In consideration of the premises, the party of the second part accepts the assignment herein made and the trust herein imposed upon him, and covenants and agrees that he will faithfully discharge the duties of assignee herein devolved upon him to the best of his ability. And the party of the first part has hereunto annexed a schedule of all prop[81]*81erty belonging to him at the date hereof, not exempt by law from a forced sale, as also what he claims to be so exempt, and, having signed the same, makes it— marked Ex. “A” — a part hereof. In witness-whereof the parties have hereunto set their hands and seals the day and year first above written.
George W. Gibbs, [Seal.]
George A. Crocker,. [Seal.]'
Signed, sealed and delivered in presence of us, and we certify “to the proper and lawfully carrying out of said trust,” interlined page 4, line 20, before execution.
J. W. Allen, Clk. Cir. Ct.
D. L. Dunham.
On this 8th day of November, A. D. 1890, before me personally came George W. Gibbs and George A. Crocker, to me well known to be the same persons described in and who executed the foregoing assignment, and duly and severally acknowledged that they executed the same. Witness my hand and official seal the day and year last above written.
J. W. Allen,
Seal. Clk. Cir. Ct.
Ex. “A.”
Schedule of property of George W. Gibbs, as nearly as the same can now be ascertained, referred to in the annexed assignment. About 580 acres of land in T. 4, South of Range 29 E., in the State of Florida, known as the “Diego Tract,” the title of which [82]*82stands in my wife’s name, but of which I am the equitable owner, and which I am to transfer to my said assignee by deed from self and wife, value..........................$12,000.00
Mortgaged to Bank of Jacksonville for.... 7,000.00
Value of equity of redemption (estimated)... $5,000.00
Dated November 8th, 1890.
Gnonc-is W. Gibbs.
The court upon this statement of facts rendered Judgment in favor of the garnishee, dismissing him without day, and awarding him a recovery of costs. From this judgment the plaintiffs have appealed here.
The error assigned is, that the judgment is contrary to law and the evidence. The practice seems to be well established that the validity of a deed of assign: ment, made for the benefit of creditors, and alleged to be fraudulent or void, may be tried in a court of law, upon an issue made between a creditor and the assignee summoned as garnishee, under the provisions of law relating to garnishments. Lee vs. Tabor, 8 Mo. 322; Moss vs. Humphrey, 4 G. Greene (Iowa) 443; Dawson vs. Coffey, 12 Oregon, 513; National Park Bank vs. Lanahan, 60 Md. 477; May vs. Walker, 35 Minn. 194, 28 N. W. Rep. 252; Hardcastle vs. Fisher, 24 Mo. 70; Bishop, Smith & Co. vs. Trustees of Hart, 28 Vt. 71; Keep vs. Sanderson, 2 Wis. 42, S. C. 60 Am. Dec. 404. And these authorities maintain that In the trial of such issue if the assignment is found to be fraudulent, void or ineffectual, the garnisheeing creditor should recover against the assignee the amount found in his hands under such void assignment at the time of the service of the writ up to the extent of the creditor’s claim.
[83]*83It is contended for tlie appellant plaintiffs that the ■deed of assignment here made by the partnership firm •composed of Gribbs, Hopkins and Livingston is void upon its face for the following reasons: (1) Because it is a partial assignment only; that it undertakes and purports only to convey to the assignee for the benefit of the creditors of the firm the partnership property, and, on its face, does not assign or carry to the assignee any property that may be owned individually by the members of the firm. (2) Because it makes no provision for the payment of any individual debts that may be owing by the members of the firm; but provides, to the exclusion of any creditors of the individual members of the firm, that after the partnership debts shall ■be paid, any balance remaining in the hands of the assignee shall then revert to and be paid over to the members of the firm in equal proportion. (3) Because the deed of assignment is not verified, by the assignors in accordance -with the provisions of our assignment statute, Chapter 3891 laws, approved May 31st, 1889, in force at the time this assignment was made. It is further contended for the appellants that the two deeds of assignment, referred to as exhibits B and C, made by Gribbs and Hopkins, members of the firm, of their individual property, do not cure- the defects. of the assignment by the firm, and are void upon their face, (1) because they are not verified in compliance with the said assignment law; (2) because only two members of the firm assign their individual property, leaving the other member, Livingston, still in possession and control of any property he may individually own; and (3) because the deed of assignment by the firm provides for the return to the assignors of any surplus of the firm’s assets after the payment of the firm’s debts, to the exclusion of the creditors of the individ[84]*84ual members of the firm, and these two assignments'by the members of the firm make no provision for the-distribution of that surplus, if any such there shall be, among the creditors of the individuals composing-that firm; and (4) because the assignment by the firm, and those made by its members, Gfibbs and Hopkins, were not made at the same time, but had several days-to intervene between the making thereof.
Before proceeding to the discussion of the questions raised we deem it proper to say that the grounds or reasons upon which the ruling of the court below was based are .not stated or disclosed by the record before us, and that no submission of the cause, by brief or otherwise, has been made here on behalf of the appellee; our consideration of the case must, therefore, be confined to a decision of the question as raised and presented by the counsel for the appellant upon the record before us, without considering the case in any other aspect than that in which it is presented. Kennedy vs. McKee, 142 U. S. 606, 35 Lawyers’ Ed. 1131, 12 Sup. Ct. 303.
The provisions of the assignment law, Chapter 3891, acts of 1889, that bear upon the questions raised as to-the validity of the deeds of assignment here are as follows: “Section 1. That no assignment made for the-benefit of creditors shall be valid in this State except the-same shall be in writing and shall provide for an equal distribution of all the assignor’s real, mixed and personal property, except such as is exempted by law from forced sale, among the several creditors of the-said assignor, in equal proportion, according to their respective demands. Sec. 2. That the said assignor shall make and subscribe an oath in writing before-any officer authorized to administer oaths, of the-county in which he lives and does business, or of the-[85]*85•county or counties wherein is situated the property .assigned, not more than ten days after said assignment, that he has placed or assigned, and the true intention of his assignment was to place in the hands of his assignee, all of his property of every description, ■except such as is exempt by law from forced sale, to be divided among his creditors in proportion to their respective demands. Sec. 3. That both the said deed of assignment and oath of assignor shall be recorded in the office or offices of the clerk or clerks of the county or counties in which the property that is assigned is -situated. * * Sec. 5. That any assignor who shall swear falsely when he makes' the oath required in section 2 of this act shall be deemed guilty of perjury, and upon conviction thereof shall be imprisoned in the .State penitentiary not exceeding twenty years.” It will be observed that none of the deeds of assignment here were accompanied by the oath of the assignors, provided for in section 2 of the above act. This alone, we think, vitiated the deeds and rendered them all inoperative and void as to creditors. Such provisions ,in laws of this character have quite uniformly been held to be, not directory merely, but mandatory, and vitiative of the assignment, when not complied with. Hill, Fontaine & Co. vs. Alexander Bros., 16 Lea (Tenn.) 496; Coggins vs. Stephens & Co., 73 Ga. 414; Mather vs. McMillan, 60 Wis. 546, 19 N. W. Rep. 440; Jaffray vs. McGehee, 107 U. S. 361, 2 Sup. Ct. Rep. 367. That the provision of this act requiring this oath to be made ,by the assignor was intended by the Legislature to be mandatory, and not directory, to be complied with or not at the will and pleasure of the assignor, we think is evident from the provisions of the áct quoted. Not ■only is one entire section of the act devoted to a prescription of the oath and what its contents shall be, [86]*86and an express limit of time within which it shall be-made, but another section (3) further dwells upon its-importance by providing that such oath shall be perpetuated of record along with the deed of which it speaks; and still another section (5) is exclusively devoted to prescribing a special penalty for false swearing in taking such oath. It was also, we think, the-evident purpose of this act to prohibit partial assignments for the benefit of creditors in this State, and to' prohibit therein the preferment of one creditor over another. The plain and emphatic language of section one of the act, declaring in express terms “that no-assignment made for the benefit of creditors shall be-valid in this State except the same shall be in writing and shall provide for an equal distribution of all the-assignor’s real, mixed and personal property, * * in equal proportion, according to their respective demands,” coupled with the specific requirement of the-oath by the assignor, ‘ ‘ that he has placed or assigned, and the true intention of his assignment was to place in the hands of his assignee, all of his property of every description,” will permit of no other construction. The assignment executed here by the partnership firm does not purport to convey to theassignee anything more thán the partnership property, and in express terms confines itself to partnership property, and is fatally obnoxious to our statute, in that it excludes the creditors of the individual members of the firm from any participation-in the partnership property even after partnership-debts have been satisfied in full. Where a deed of assignment made by a firm of copartners for the benefit of their creditors conveys to the assignee nothing* but the joint property of the firm, without including-also the property of the individuals composing th& [87]*87firm, the authorities are quite uniform that such assignments are partial assignments only, and void, where the statute requires a conveyance of all the debtor’s property. Thomas vs. Jenks, 5 Rawle (Pa.), 221; Seaving vs. Brinkerhoff, 5 Johnson’s Chy. 329; Sangston vs. Gaither, 3 Md. 40; Citizens Fire, M. & L. Ins. Co. vs. Wallis and Thomas, 23 Md. 173; Probst & Hilb vs. Welden, 46 Ark. 405; Henderson vs. Bliss, 8 Ind. 100; In re Allen, 41 Minn. 430, 43 N. W. Rep. 382; May vs. Walker, 35 Minn. 194, 28 N. W. Rep. 252; Still vs. Focke & Wilkins, 66 Texas, 715, 2 S. W. Rep. 59; Donoho vs. Fish Bros. & Co., 58 Texas, 164; Kennedy vs. McKee, 142 U. S. 606, 12 Sup. Ct. Rep. 303, 35 Lawyers’ Ed. 1131. The reasons urged against the assignments here are all of them well taken. It did not comply with the provisions of our statute by including therein all of the property of the assignors, both partnership and individual, and was not verified by the oaths of the assignors, as the statute required, and it was therefore inoperative and void as to the creditors, and did not put the property of the assignors beyond the reach of creditors by such remedies as were open to them in the courts. The judgment, upon the facts disclosed by the record, should have been against the garnishee, and in favor of the appellants.
The judgment appealed from is reversed and a new trial ordered.