Dodd v. Martin , 15 F. 338 ( 1882 )

Caldwell, J.

It will be observed that the deed on its face does not purport to convey all the assignor’s property. The property conveyed is limited by the terms of the deed to that mentionod and described in Schedule A, and to tho choses in action which are assigned by an independent clause in the deed, and as to which the deed took effect on its delivery.

The failure to attach the schedule renders the deed inoperative and void as to all property intended to be embraced in the same, and not otherwise described than by a reference to it. Barkman v. Simmons, 23 Ark. 1; Moir v. Brown, 14 Barb. 39. This being so, it results that the deed of assignment, at the time of its execution and delivery, conveyed only a part of the assignor’s property. The supreme court of this state, in Clayton v. Johnson, 36 Ark. 406, hold that a deed of assignment containing a stipulation that no creditor shall participate in the proceeds of the property assigned unless he accepts the samo in full satisfaction of his debt, is valid. But a deed containing such a stipulation, to be valid, must convey all the debtor’s property. This is held in Clayton v. Johnson, supra, and is the doctrine of most of the courts which maintain the validity of such a stipulation. “It is held,” says Mr.Burrill, “almost without exception, that such a stipulation in an assignment of part of a debtor’s property is fraudulent. ” Burr. Assignm. (4th Ed.) 273.

The deed, therefore, stipulating for a release and conveying only a part of the debtor’s property, is fraudulent and void. It imparted no title to the assignee as against an attaching creditor, and justified the plaintiffs in attaching the assignor.

The conclusion arrived at in this point is decisive of the case, and renders it unnecessary to decide the other questions so ably argued by counsel.