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Eddins vs. Buck....
14 Harding advs. Keeler et al.....
Harris, Wormly & Co. vs. Redman. 535
Hill vs. Wright, Williams & Co... 15
Farish vs. Jones..
Ford et al. advs. Apperson & Co... 746
Fowler's ex. advs. Patterson..
Fraley and others adv. Miller.
Hogan et al. vs. State..
Howard advs. Gulledge.
258 Lafargue advs. Clayton....
Logan ads. Scott...
Miller vs. Fraley et al..
Macon et al. advs. Pope et al..
Mayor & Co. adv. M. O. R. R. R. Co. 300
Mayson ads. Duval.
Mis. O. R. R. R. Co. vs. Mayo, &c.. 300 Renfro vs. White..
Phillips vs. Grayson..
Pope et al. vs. Macon et al.
Price advs. Guthrie..
Price advs. Craig...
Sanders advs. Alexander.
235 Simmons, ad. advs. Barkman.
Redman adv. Harris, Wormly & Co. 535
Hon. LEN B. GREEN, Circuit Judge.
Where a deed of assignment, for the benefit of creditors, purports to convey all of the debtor's property, and refers to a schedule as thereto attached, the assignment operates on the articles specified in the schedule; but if no schedule is annexed, the deed is inoperative.
Such deed of assignment, being limited and controlled by the schedule intended to be attached to it, is a special, not a general, assignment; and as by the schedule alone it can be ascertained what articles were intended to be conveyed for the benefit of the creditors, the failure to attach the schedule, renders the deed insensible, and parol evidence cannot be resorted to, as in case of a general assignment, to render it operative and effective.
Appeal from Ouachita Circuit Court.
Barkman et al. vs. Simmons.
LYON, for the appellant.
The Circuit Court erred in excluding from the consideration of the jury, the deed of assignment, executed by Lockwood and Phillips, for the benefit of their creditors. The deed was for a fair and meritorious consideration; and divested Lockwood and Phillips of all ownership of the property at the the time the attachment was levied, at the suit of the defendant. It conveyed all their lands within the State, and all their goods and chattels necessarily including the clocks, for the conversion of which, the present suit is brought. This was a general assignment of all the debtors' property, and no schedule was, therefore, necessary; the deed, itself, was sufficiently descriptive of the property, and the schedule intended to be annexed, was for the convenience of parties in accounting for the proper disposition of the proceeds of sale. Hatch vs. Smith, 5 Mass. 42; Robins et al. vs. Embry et al., 1 Sm. & Mar. Ch. Rep. 207.
No schedule being necessary, the deed being sufficiently comprehensive to pass all of the debtor's property, the omission to attach one did not render the deed inoperative. Emerson vs. Knower, 8 Pick. 63; Duval vs. Raisin, 7 Misso. 449.
GALLAGHER, for appellee.
The only point in this case is, did the Circuit Court err in rejecting the deed offered as evidence by the plaintiffs below.
It is respectfully insisted that the deed was properly rejected, because it was defective in a most essential particular, and therefore inoperative and void. It purported to convey personal property as per schedule annexed; no schedule was annexed; the deed, therefore, was not perfected, and no property could be transferred by it. Driscoll et al. vs. Fiske et al., 21 Pick. 503; Wilks vs. Ferris, 5 John. 335.
It being clearly the intention of the parties, as expressed in the deed, that a schedule, descriptive of the articles intended to be conveyed, should be attached to it, the deed itself was inoperative, and nothing whatever passed by it, for