Sandmeyer v. Dakota Fire & Marine Insurance

Citations

• 2 S.D. 346
• 50 N.W. 353
• 1891 S.D. LEXIS 35

Syllabus

<p>1. When the court below grants a now trial solely on the ground of alleged errors of law occurring' at the trial, an appeal to this court from the order granting such new trial presents only a question of law to be determined by this court, iand the judicial discretion of the court below is not involved. '</p> <p>2. An instrument purporting to bo an assignment for the benefit of creditors. which on its face does not purport to be an assignment of all the debtor’s property, is in law a partial assignment.</p> <p>3. An instrument that does not purport to be made by an insolvent debtor, and to convey all the debtor's property not by law exempt, does not constitute an assignment under the statute of this state providing- for assig'nments by insolvent debtors.</p> <p>4. When an instr u ment purporting to bo an assignment for the benefit of certain creditors was made and oxecuted in the State of Texas, and no evidence is given or offered by either party as to the law of Texas relating- to such an assig-nment, this court will presume that the law of Texas is the same as our own upon that subject.</p> <p>5. An assignment for the benefit of creditors that convoys to the assignee the absolute legal and equitable title to the assigned property, free from the control of the debtor, charged with a trust for the payment of all or of certain designated debts of the debtor, constitutes the assig-noe “the trustee of an express trust,” who is authorized to bring suit‘in his own name, by Section 4872, Comp. Laws.</p> <p>6. But when a debtor transfers money or other property to a third person to pay certain debts of the debtor to certain desig-nated creditors, without transferring absolutely the legal and equitable title, free from the .debtor’s control, the relation of such third party to the debtor is that of an agent; and such third party cannot maintain an action relating to such money or property in his own name, he being neither “the 'trustee of an express trust” nor “the real