Van Vleet v. Slauson

Headnote

O. conveyed to V. his real estate, hy an absolute deed, and his personal property by a bill of sale. At the same time V. executed an agreement by which he covenanted with 0. to take the property and pay certain debts'of 0. first, and other debts in - proportion to the amount of funds realized from a sale of the property, and remaining after paying certain preferred debts. Nothing was paid by V. notwithstanding the acknowledgment of the receipt of the purchase price in the papers, but V. was a member of a partnership firm which was a creditor of 0. and the debt was to be among the first paid. "After the application of the proceeds of the sales to the payment of all the debts of 0. the balance, if any, was to be returned or paid over to him. Meld, that the deed, bill of sale, and agreement must be read and construed together, as if

the whole were contained in one instrument; and that read and construed in that manner, they constituted an assignment in trust for the benefit of creditors, and must be so regarded in law, notwithstanding the form of words used in the several instruments.

Section two of the act of 1860, respecting assignments for the benefit of creditors, requiring an assignor, within twenty days after the date of an assignment, to make and deliver to the county judge an inventory of his debts and assets, and section three, requiring the assignee, within thirty days after the date of the assignment, to give-a bond, conditioned for the faithful discharge of Ms duties, are directory merely; and an assignment, in other respects good, is valid, and vests a perfect title in the assignee, although not followed by the schedule or bond provided for by the statute.

THIS action was brought to recover the value of certain personal property mentioned in the complaint, which it was alleged the defendant had wrongfully converted to his own use. The answer sought to avqid responsibility on the part of the defendant, by alleging that he was the sheriff of Seneca county, and took the property, in his official capacity, as the property of one William O’Neil. On the trial it was admitted that the defendant was the sheriff of Seneca county at the time the property in question was taken by him.

The plaintiff, to sustain this action, was duly called and sworn as a witness in his own behalf, and testified as follows : “ I am plaintiff. I reside in Livingston county, bút do business in South Waterloo, Seneca county, and did in February, 1864, and before that time. The store was situate in the village of Waterloo, Seneca county. The goods which I spoke of were in this store. On the 11th day of February, 1864, -the defendant came to my store in Waterloo, and took away a portion of my goods. I told the defendant not to take away any of my goods. He said he would—that.he was directed to take the goods, and he should follow his directions. The defendant removed the goods from the store, and afterwards sold them at auction.” [A paper containing a list of the articles taken by defendant was here shown witness, who said:] “ This paper contains a list of the goods taken from my store by the defendant, and their value.” It was then admitted by the defendant that the list of articles enu

merated on the paper produced by the plaintiff was cornet as to the articles taken by the defendant, but not as to their value. The witness then further testified: “Before the commencement of this action, I went to the defendant and demanded of him the goods which he had taken from my store, and he told me that he would not give them up.” On his cross examination the witness further testified: “I bought this store and goods from William O’Neil, and-he and his wife gave me a deed of the real estate at the time I bought it. • He also gave me a bill of sale of the personal property. I bought the goods on the 20th of January, 1864. The bill of sale, I suppose, is in the town clerk’s office.” A bill of sale was here shown witness, who said: “ This is the bill of sale I received from O’Neill at the time I bought the goods of him.” The following is a copy of said bill of sale: “Know all men by these presents, that I, William O’Neill, of Chemung county, N. Y. of the first part, for and in consideration of the sum’ of five hundred dollars, lawful money of the United States, to him in hand paid at or before the ensealing and delivery of these presents, by Barney Van Vleet, of Waterloo, Seneca county, New York, of the second part, the receipt whereof is hereby acknowledged, have bargained, sold, granted and conveyed, and -by these presents do bargain, sell, grant and convey unto the said party of the second part, his executors, administrators and assigns, all the personal property mentioned and enumerated in an inventory hereto annexed. [Here follows an inventory of goods and accounts, which amounts to $7884.93, a large share of which is in accounts against various persons.] . To have and to hold the same unto the said party of the second part, his executors, administrators and assigns, forever. And I do for my heirs, executors and administrators, covenant and agree to and with the said jxarty of the second part, to warrant and defend the said property hereby sold unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whomsoever.

In witness whereof, I have hereunto set my hand and seal the 20th day of January, 1864.

Signed, William O’Neill. [l. s.”]

Question : What did you pay for these goods mentioned in this bill of sale ? This was objected to by the plaintiff, on the grounds, first, that the bill of sale could not be contradicted or varied or altered by parol evidence; and, second, that the only effect of the evidence, if admitted, would be to show that the sale from O’Neil to the plaintiff was fraudulent, and that the defendant could not inquire into the good faith of the sale, for the reason that it was not alleged in the answer that the sale from O’Neil to Van Yleet was fraudulent or without consideration. The court overruled the objections, and the plaintiff excepted.

Answer: “I paid nearly $3000 for the goods and the real estate conveyed to me by William O’Neill. I paid it in this way: At the time I bought the goods, William O’Neill was owing me nearly $3000, or rather he was owing the firm of Markle & Yan Yleet, of which I was a member, nearly that sum for flour and other goods, which we had sold to him, and for indorsements which I had made for him, to enable him to carry on the business of baking and confectionary at Waterloo. It was to pay this indebtedness that he transferred this property tó me, as I have before stated. The real estate, which was conveyed to me by William O’Neill and wife was encumbered to a large amount, nearly its full value. There was a writing executed between William O’Neill and myself, besides the bill of sale, shortly after the bill of sale was executed, and on the same occasion. I believe my counsel has that writing.” A paper was here shown the witness, who said: “ This is the writing I refer to. It was executed by myself and William O’Neill. I claim the property by virtue of this bill of sale and this writing. . I gave no bond, and no inventory of creditors was made.” The .counsel for the defendant then offered the writing in evidence, and it was received and read in evidence, .and is as follows : ' •

“Article of agreement made and concluded the 20th day of January, 1864, between William O’Neill, 'of the first part, and Barna Van Vleet of the second part, witnesseth: That the said William O’Neill has this day conveyed by a quit claim deed, the following real estate, viz: [describing it.] And also, at the same time, the said William O’Neill sold, transferred and delivered to said Barna Van Vleet all the goods, stock in trade and implements belonging to said. O’Neill, and now in the possession of John O’Neill. Now, in consideration thereof, and of one dollar paid, the said Barna Van Vleet hereby covenants and agrees to and with the said William O’Neill, that he will take possession of said property, real and personal, and sell and convert the same into money,' for the best price he can obtain therefor, at public or private sale, as shall be deemed best for the parties; and out of the moneys arising from the sales of said property, real and personal, that he will, after deducting the expenses attending the sale of said property, first pay off all the encumbrances and claims which are now upon said real estate, of every nature and description; and, secondly, that he pay to Markel & Van Vleet, of Fayette", Seneca county, an account held by them against said William O’Neill, and on which there is now due about the sum of two thousand dollars; a note held by Simon Goodman, of Bochester, and which is indorsed by Barna Van Vleet, for which there is unpaid about the sum of one thousand and seventy dollars ; a debt due the estate of William Kittrick, deceased, of about the sum of eight hundred and forty-seven dollars; and thirdly, that he pay out of the surplus, if any there shall be, all of the debts, claims and demands for which the said William O’Neill shall or may be liable, incurred by or in consequence of purchasing the property lately owned by John O’Neill, and continuing the business heretofore carried on by the said John O’Neill, if there shall be sufficient for that purpose; and if not sufficient, that he apply said surplus to the payment of said claims and demands, pro rata, share and share alike, If there shall be

a surplus remaining after making such payments as aforesaid, to pay and discharge all the other debts and claims against the said William O’Neill, if there shall be sufficient for that purpose ; and if not sufficient to pay in full, then to apply said surplus in payment of said debts, pro rata, share and share alike. And, lastly, if, after paying all the debts and liabilities of said William O’Neill as aforesaid, then that said Van Vleet pay over to said William O’Neill such surplus, whatever the same may be.

Witness our hands and seals the day and year first above written. Signed, William O’Neill, [l. s.]

Babna Van Vleet.” [l. s.]

All of the foregoing testimony, except the admission of the writing, was duly objected to by the plaintiff, on the same grounds as before stated, and received subject to such objections. On his redirect examination, the witness further testified: “After I bought the property of William O’Neill, I immediately took possession of the same, and have retained it ever since, except what I have sold and what was taken from me by the defendant. I have not yet realized enough out of it to pay my claims against William O’Neill.” The plaintiff’s counsel here offered to prove that the property mentioned in the bill of sale was sold by parol to the plaintiff before the writing was executed. The defendant’s counsel objected, on the ground that parol testimony could not be given to vary the writing, and that if the agreement was before the writing, then it merged in the written agreement. The court sustained the objection, and the plaintiff excepted. The defendant here offered in evidence the papers mentioned in the answer—that is, the warrant of attachment, the affidavit upon which it was granted, the undertaking for the same, the levy of the defendant, as sheriff of Seneca county, upon the property in question, the return of the sheriff thereon, the inventory of the appraisers ; also, the judgment roll in the attachment suit of George P. Heir against William

O’Neill for $622.74 damages and costs, and docketed with the clerk of Seneca county, and the execution thereon, with the return of the said sheriff that said property was sold on said execution. The plaintiff objected to the reception of these papers in evidence, on the ground that he had other-evidence to give as to the value of the property, and for other-purposes. The court decided to receive the papers' in evidence, subject to all legal objections, and to give the plaintiff the right to give proof of the value, of the property afterwards, if the motion for a nonsuit, which the defendant was about to make, was denied. The plaintiff excepted. The plaintiff here rested, with the right to call witnesses as to value. The defendant then moved for a nonsuit, on the ground that the bill of sale and the other writing, taken together, constituted a trust in the plaintiff for the benefit of all of the creditors of William O’Neill, and that none of the provisions of the law of 1860, in relation to assignments, were complied with. Motion granted, and the plaintiff excepted. Whereupon, on motion of the plaintiff’s counsel, the court ordered a stay of judgment for- thirty days, and that the plaintiff have leave to make a case on which to move for- a new trial, and that such motion be heard at general term in the first instance, and that in the meantime all proceedings on the part of the defendant be stayed until the decision of such motion.