Cunningham v. Norton,
125 U.S. 77 (1888)

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U.S. Supreme Court

Cunningham v. Norton, 125 U.S. 77 (1888)

Cunningham v. Norton

No. 74

Argued November 17, 1887

Decided March 19, 1888

125 U.S. 77


Whether, in a deed of assignment by a debtor for the benefit of creditors made under a state statute, a disregard of and departure from some directions of the statute shall invalidate the assignment or only make the varying provision in it void will depend upon the general policy of the statute -- whether it is intended to restrain or to favor such assignments.

A provision in an assignment by a debtor for the benefit of his creditors under the statute of the Texas of March 24, 1879, Rev.Stat. Texas, 1879, App. 5, that any surplus shall be paid to the debtor, made in violation of the direction in § 16 of the statute that such surplus shall be paid into court, does not affect the validity of the assignment, but only invalidates the violating provision.

The words

"all his lands, tenements, hereditaments, goods, chattels, property, and choses in action of every name, nature and description, wheresoever the same may be, except such property as may be by the constitution and laws of the state exempt from forced sale,"

are a sufficient description to convey all the debtor's estate under the Texas statute of March 24, 1879, regulating assignments by insolvent debtors.

A statement in a deed of assignment by a debtor for the benefit of his creditors, that he "is indebted to divers persons in considerable sums of money which he is at present unable to pay in full" is a declaration of the insolvency of the grantor.

This was an action in the nature of trespass brought by an assignee of an insolvent debtor against a marshal of the

Page 125 U. S. 78

United States for levying upon goods of the debtor covered by the deed of assignment. The defendant contested the validity of the assignment. Judgment for defendant. 15 F. 853. Plaintiff sued out this writ of error. The case is stated in the opinion of the Court.

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