Sandwich Manufacturing Co. v. Max

Citations

• 5 S.D. 125
• 24 L.R.A. 524
• 58 N.W. 14
• 1894 S.D. LEXIS 34

Syllabus

<p>1. At common law a debtor may use any.or all his property to pay one or more creditors in preference to others, and in this state the same right is expressly declared by statute. Comp. Laws, ? 4654.</p> <p>2. The right of a debtor to pay one or more creditors in preference to others, and the right to make a general assignment for the benefit of all his creditors ratably, are distinct and independent rights.</p> <p>3. The statute regulating and permitting voluntary assignments by insolvent debtors for the benefit of creditors was not intended to and does not affect or qualify the right of such debtors to make preferences among their creditors.</p> <p>4. When a conveyance of property is made in good faith directly to a creditor in absolute executed payment of a debt, the transaction lacks the essential elements of a trust, and cannot be brought within the range of such assignment law.</p> <p>5. An insolvent debtor may use his property to pay preferred creditors, or he may make a general assignment, as he chooses.</p> <p>6. If, however, he attempt to use the law permitting and regulating general assignments for the benefit of all creditors, he must in good faith do what such law contemplates, and what he professes to do, and in such case he can make no preferences.</p> <p>7. It is only when a debtor indicates his intention of taking advantage of the law permitting and regulating- general assignments, and putting his property under its protection, that he is denied the right to make preferences among his creditors.</p> <p>8. The doctrines of the opinion in Straw v. Jenks, 43 N. W. 941, 6 Dak. 414, disapproved.</p> <p>(Syllabus by the Court.</p>