Dawley v. Sherwin

Citations

• 5 S.D. 594
• 59 N.W. 1027
• 1894 S.D. LEXIS 101

Syllabus

<p>1. A deed of assignment, void as to creditors generally, may be good as between tbe immediate parties; and wben property in tbe bands of an assignee for tbe benefit of creditors is attached as tbe property of tbe as. signor, and a suit is instituted by the assignee against the sheriff to recover tbe value of the attached property, before such officer can attack the assignment as fraudulent and void he must show that he has taken the property under a valid attachment at the suit of a creditor of the assignor, and that he has pursued the statutory steps in relation thereto subsequent to the seizure of the same.</p> <p>2. A deed of assignment made for the benefit of creditors, in which the grantor reserves an amount within the statute as exempt to an insolvent debtor, who is the head of a family, is not void upon its face for the sole reason that it neither recites that the grantor is insolvent, nor the head of a family, but such facts may be shown in a proper case by a party in position to question the legality of the transaction.</p> <p>3. An affidavit for an attachment, which states, in the language of the statute, “that said defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, her property, with the intent to defraud her creditors,” states but a single cause for allowing an attachment, and is sufficient, under section 4995 of the Compiled Laws.</p> <p>(Syllabus by the Court.</p>