A marshal of the United States, or his deputies, being sued in
trespass for seizing particular property under an attachment, to
him directed, and defending upon the ground that the property so
seized belonged to the defendant named in the writ of attachment,
may have the case -- the amount in dispute being sufficient --
removed to the proper circuit court of the United States as one
arising under the laws of the United States.
A deed of assignment for the benefit of creditors recited the
indebtedness of the assignor, his inability to pay his debts with
punctuality or in full, and his desire to make "a fair and
equitable distribution of his property among all his creditors,"
and provided that the assignor "has bargained, sold and assigned,
and does hereby grant, convey and assign," unto the assignee
"all the lands and all the personal property of every name and
nature whatsoever of the said party of the first part, more
particularly enumerated and described in the schedule hereto
annexed, marked Schedule
Page 139 U. S. 629
A, or intended so to be. . . . Schedule B, hereto annexed,
contains, as near as I can state, a list of all my creditors and
the amount of their respective demands, and both of said Schedules
A and B are hereby made part of this assignment."
Schedule A, annexed to the assignment, contained an inventory of
certain real estate and a list of persons indebted to the assignor,
and was verified by his oath to the effect that it contained a true
list of the assignor's creditors and the amount of their respective
demands. But it contained no clause or provision which by any
construction embraced a stock of goods worth about $10,000, and
constituting at the time the bulk of the assignor's estate.
Held that the title to these goods did not pass to the
assignee, and remained subject to attachment as the property of the
assignor. The general description in the assignment of the property
conveyed is limited by the particular description immediately
following in the same clause referring to Schedule A.
The statutes of Iowa relating to assignments for the benefit of
creditors refer to
general assignments, by which the
assignor makes a disposition of all his property for the benefit of
all his creditors. They do not relate to partial assignments which
are permissible under the laws of that state.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This action involves the title to a certain stock of goods
seized under attachments sued out against the property of H. P.
Lane from the Circuit Court of the United States for the Northern
District of Iowa, and directed to the marshal of that district for
execution. The goods, when seized, were in the possession of the
plaintiff in error, who claimed the right to hold them under an
assignment made to him by Lane before the attachments were issued.
Bock seeks to recover from Perkins, the marshal, and from Thrift
and Hopkins, his deputies, damages in the sum of $10,000 for their
seizure. The defense was that the goods were the property of Lane
at
Page 139 U. S. 630
the time of the seizure, and therefore were liable to be taken
under the attachments. Upon the petition of the defendants,
accompanied by a proper bond and an affidavit setting forth the
nature of the defense, the case was removed into the court below
for trial as one arising under the laws of the United States. The
plaintiff moved to remand it to the state court. The motion was
denied, and by direction of the court the jury returned a verdict
for the defendants. A judgment in their favor was accordingly
entered.
Bock v. Perkins, 28 F. 123.
The court below properly retained the case for trial. Every
marshal of the United States, as well as his deputy, must take an
oath or affirmation that he will faithfully execute all lawful
precepts directed to him, and in all things well and truly perform
the duties of his office. The marshal must also give bond, with
sureties, for the faithful performance of the duties of his office
by himself and deputies. And marshals and their deputies have, in
the respective states, the same powers in executing the laws of the
United States as sheriffs and their deputies have in executing the
laws of such states. Rev.Stat. §§ 782, 783, 788. A case therefore
depending upon the inquiry whether a marshal or his deputy has
rightfully executed a lawful precept directed to the former from a
court of the United States is one arising under the laws of the
United States, for, as this Court has said,
"cases arising under the laws of the United States are such as
grow out of the legislation of Congress, whether they constitute
the right or privilege, or claim or protection, or defense of the
party, in whole or in part, by whom they are asserted."
Tennessee v. Davis, 100 U. S. 257,
100 U. S. 264;
Railroad Co. v. Mississippi, 102 U.
S. 135,
102 U. S. 141.
If the goods in question, when seized, were the property of Lane,
the marshal and his deputies were in the discharge of duties
imposed upon them by the laws of the United States, and for any
failure in that regard he would be liable to suit by anyone thereby
injured. Rev.Stat. § 784. This case was therefore one arising under
the laws of the United States, and removable from the state court.
Feibelman v. Packard, 109 U. S. 421,
109 U. S. 423;
Bachrack v. Norton, 132 U. S. 337;
Page 139 U. S. 631
Reagan v. Aiken, 138 U. S. 109;
Houser v. Clayton, 3 Woods 273;
Ellis v. Norton,
16 F. 4.
No different doctrine was announced in
Buck v.
Colbath, 3 Wall. 334. On the contrary, that case
sustains the view we have just expressed. Colbath sued Buck in a
state court in trespass for taking his goods, the latter pleading
simply that he was marshal of the United States, and had seized the
goods under an attachment against the property of certain parties
named therein, but not averring that the goods belonged to the
defendants named in the writ. This Court, upon error to the highest
court of the state, held that the marshal was guilty of trespass in
levying upon the property of one against whom the writ did not run,
and could be sued therefor in a state court, the mere fact that the
writ issued from a federal court constituting no defense. The
judgment in that case against the marshal was reviewed here under
the act of Congress authorizing such review in cases where a party
specially claimed the protection of an authority exercised under
the United States and the decision withheld the protection so
claimed. The decision sustains the proposition that where a
marshal, being sued in trespass in a state court for taking
property under a writ of attachment to him directed, defends upon
the ground that the property attached belonged to the defendant
named in the writ, the case is one arising under the laws of the
United States, and therefore removable.
We come now to the principal question in the case. The plaintiff
claims title to the goods attached under an instrument of writing,
executed on the day it bears date, as follows:
"This indenture, made the 20th day of November, A.D. 1884,
between Henry P. Lane, of New Albin, Allamakee County, and State of
Iowa, of the first part, and Wm. O. Bock, of said county and state,
of the second part:"
"Whereas, the said Henry P. Lane is justly indebted in
considerable sums of money, and has become unable to pay the same
with punctuality or in full, and is now desirous of making a fair
and equitable distribution of his property among all his creditors,
now this indenture witnesseth that the said party
Page 139 U. S. 632
of the first part, in consideration of the premises and of the
sum of one dollar to him aid by the party of the second part, the
receipt whereof is hereby acknowledged, has granted, bargained,
sold, and assigned, and does hereby grant, convey, and assign, unto
the said party of the second part and to his assigns, forever, all
the lands and all the personal property of every name and nature
whatsoever of the said party of the first part, more particularly
enumerated and described in the schedule hereto annexed, marked
'schedule A,' or intended so to be, upon the following trusts,
viz., to take possession of said lands and property, and
sell said lands, unless otherwise directed by the Circuit Court of
Allamakee County, State of Iowa, on notice published as in cases of
sales of real estate on execution, and dispose of said personal
property upon such terms as in his judgment may appear best, but
not on credit, and hold the proceeds of sales of all said lands and
personal property for distribution among all the creditors of said
party of the first part in accordance to such orders and directions
as may from time to time be made by said circuit court, and shall,
after final settlement and distribution be made, and all the
reasonable expenses, rents, taxes, assessments, commissions, and
allowances are paid, return any surplus there may be of the
proceeds of the sales of the assigned property to the party of the
first part or his assigns, and also to reconvey, reassign, to him
or them any real or personal property remaining unsold. Schedule B,
hereto annexed, contains, as near as I can state, a list of all my
creditors, and the amount of their respective demands, and both of
said Schedules A and B are hereby made part of this assignment.
Witness my hand the day and year first above written."
"HENRY P. LANE"
"In presence of SAM'L H. KINNE"
Bock, on the same day, accepted the trust created by this
instrument, and agreed to execute its provisions.
Schedule A, annexed to and made part of the assignment,
contained an inventory of certain real estate, and a list of the
names of about 150 persons indebted to the
Page 139 U. S. 633
assignor, but no mention was made in it of the stock of goods in
question. It was verified by his oath to the effect that, according
to the best of his knowledge, it contained a true statement and
account of his estate, both real and personal. Schedule B, also
annexed to and made part of the assignment, contained a list of the
assignor's creditors, about fifty in number, with the amount of
their respective demands. It was verified by Lane's oath to the
effect that it contained a true list of all his creditors and the
amount of their respective demands.
Lane was engaged in mercantile business at New Albin, Allamakee
County, Iowa, when the assignment was made, and owned the goods
alleged to have been wrongfully taken under the attachments. After
the assignment was executed and acknowledged, Bock took possession
of them. He caused an inventory to be made and put the assignment
on record before the attachments were levied. At the time of the
assignment, he was in Lane's employment, and had charge of his
mercantile business.
The court charged the jury that as the goods in question were
not enumerated or described in the schedule annexed to and made
part of the assignment, and could not by any construction of its
clauses be included in it, the title did not pass to Bock, and they
were rightfully attached as the property of Lane. It also held that
the defendants were entitled to a verdict upon the further ground
that if the instrument were treated as a general assignment under
the statutes of Iowa regulating assignments for the benefit of
creditors, it was void because, when taken in connection with
certain conveyances executed about the same time by the assignor
for the benefit of his wife and wards -- all the instruments
constituting, in the judgment of the court, one transaction -- it
gave a preference to some creditors over others, in violation of
the statute, and for that reason was void.
Van Patten v.
Burr, 52 Ia. 518, 521.
Did Lane's stock of goods pass to Bock by the assignment of
November 20, 1884? If not, they were rightfully attached as his
property. Although Lane, in the assignment, expressed
Page 139 U. S. 634
his inability to pay his debts with punctuality or in full, as
well as the desire to make a fair and equitable distribution of
"his property among all his creditors," and although the first part
of the granting clause embraces "all the lands and all the personal
property of every name and nature whatsoever" of the assignor, the
property bargained, sold, and assigned is stated in the words
immediately following, in the second part of the same clause, to be
that "more particularly enumerated and described in the schedule
hereto annexed, marked "schedule A," or intended so to be," which
schedule, together with Schedule B, is made, by express words, part
of the assignment. The schedule which thus particularly enumerated
and described the property conveyed is therefore as much a part of
the assignment as if it were embodied in it word for word. In that
view, the general description in the first part of the granting
clause must be held to be limited by the words which immediately
follow, indicating that the property, real and personal, intended
to be conveyed was enumerated in the schedule annexed. The
particular description must control the previous general
description in the same clause, although the words "general
assignment" are at the head of the instrument. Nor is the result
affected by the words "or intended so to be," following the words
"schedule A," for what was intended must be determined by reference
to the schedule, which is expressly stated in the instrument of
assignment to contain a description of the property which was
assigned to Bock. This interpretation is said to be inconsistent
with the purpose of the assignor, avowed in the assignment, to make
a fair and equitable distribution of his property among all his
creditors. But this language must be taken in connection with other
parts of the instrument showing that the distribution proposed had
reference only to the property particularly enumerated in the
schedule. We must assume that Lane did not verify Schedule A by his
oath, without reading or understanding what it contained. While, by
accident or inadvertence, he might have omitted from it property of
trifling value, it is unreasonable to suppose that the omission
from the schedule, declared to contain a more particular
enumeration
Page 139 U. S. 635
and description of the property assigned, of his stock of goods
worth nearly $10,000, and constituting the bulk of his estate, was
by inadvertence. Bock was present when the schedules were prepared,
and it cannot be that he and Lane both were unaware of the fact
that Schedule A contained nothing which, by any possible
construction, could include the goods in Lane's store. Why these
goods were omitted from Schedule A would be a matter of mere
conjecture. The probability is that the assignment and schedule
were not prepared at the same time, and that the conclusion
ultimately reached by Lane was to make only a partial assignment,
which was permissible under the laws of Iowa, and, through Bock,
his clerk and assignee, retain control of the goods in the store
without subjecting the latter to responsibility to creditors for
their management, for, by the terms of the assignment, the assignee
would only be liable to them for the proper management and
distribution of the property enumerated and described in Schedule
A, made part of the assignment. Be this as it may, and without
saying that the intention of the parties could be ascertained by
parol evidence or otherwise than from the assignment itself, we are
of opinion that the better and safer construction is that the
general words in the first part of the granting clause are limited
by the particular description in the latter part of the same clause
of the property actually conveyed to the assignee. These views are
sustained by the weight of authority, and we are referred to no
decision of the Supreme Court of Iowa to the contrary. So that
whether the property in question passed to Bock by virtue of the
assignment is to be determined by the general rules governing the
interpretation of written instruments, the controlling one of which
is that effect must be given to the intention of the parties as
disclosed by the instrument to be construed.
It will be well to refer to some of the adjudged cases. A
leading one upon the subject is
Wilkes v. Ferris, 5 Johns.
335, 345, in which an assignment for the benefit of creditors
conveyed
"all the goods, property, wares, merchandises, chattels,
vessels, debts, sum and sums of money, claims and demands, and
effects, belonging to and now due and owing to the said
Page 139 U. S. 636
Henry Cheriot, or to which and in which he has any right,
property, claim, or demand, which said goods, wares, and
merchandises, hereby granted and sold, are particularly described
and enumerated in the Schedule A, signed by the said Henry Cheriot,
and to these presents annexed,"
etc. It was contended that the assignment was broad enough to
embrace any article not contained in the schedule. But the court
said:
"This was not, in fact a general assignment of
all
Cheriot's estate, for though the words in one place be
general, yet the assignment immediately goes on to specify, by a
reference to the schedules annexed, the specific articles of
property assigned, and it therefore could operate only upon the
articles specified, for, as the court said in
Munro v.
Alaire, 2 Caines 327 [Chief Justice Kent delivering the
opinion], if a general clause be followed by special words, which
accord with the general clause, the deed shall be construed
according to the special matter."
This case has been often cited with approval. In
Driscoll v.
Fiske, 21 Pick. 503, 505, 507, the court construed an
assignment made by partners in trust for the benefit of their
creditors, who should become parties to it, of
"all their books, stock in trade, printing apparatus and
machinery, books of account, book debts, notes, and demands, and
all their other property of every name and nature, except such as
is exempt from attachment, most of the same being now at their
place of business, a schedule of which is annexed, and other and
fuller schedules of the property hereby assigned shall be hereunto
annexed as soon as the same can be conveniently made."
The schedule contained three items, namely, "stock of books in
store, printing presses and materials, notes and demands," etc. A
creditor subsequently attached certain furniture remaining in the
possession of one of the partners, after which the assignees
inserted it in the schedule. The furniture was held subject to the
attachment. The court said:
"The general phraseology in the assignment is sufficient to
include the furniture which is in question. The conveyance of
certain property specified, and of all other property of every name
and nature except such as is exempt from attachment, might well be
construed to mean all the property which the assignors
Page 139 U. S. 637
had jointly or each of them had severally. But we are to take
the whole instrument into consideration in order to ascertain the
true intent and meaning of the parties. . . . The general words are
restrained by reference to the schedules which were annexed before
the attachment was made. So that the assignment, independently of
the parol evidence, cannot by fair construction be said to include
the furniture of the individual assignors.
Wilkes v.
Ferris, 5 Johns. 345."
In the same case, it was held that parol evidence that it was
intended to include the furniture in the conveyance tended to
contradict, not explain, the writing, and was inadmissible.
See
also Tucker v. Clisby, 12 Pick. 22.
In
Mims v. Armstrong, 31 Md. 87, the precise question
here presented was decided. The deed of assignment for the benefit
of creditors in that case declared that the assignor was
"indebted to divers persons in divers sums of money, which, by
reason of sundry losses and misfortunes, he has become unable to
pay in full, and is desirous of providing for the payment thereof,
as far as he can, in a just and equitable manner by assignment of
all his property and effects for the purpose,"
and it conveyed
"all and singular his goods, chattels, promissory notes, debts,
wares, merchandise, securities, and vouchers for and affecting the
payment of money, claims, demands, choses in action, and property
of every name and nature whatever, of and belonging to him, and
which are more particularly and fully enumerated in the schedule
hereto annexed, marked 'schedule A.'"
The assignee sought to recover certain money not named in the
schedule annexed to the assignment, and which had been appropriated
by particular creditors of the assignors to their own use. The
court, holding that the money did not pass by the assignment,
said:
"In the grant before us, the general descriptive words employed
would certainly be sufficient in the absence of any descriptive
clause to pass all the debtor's property, but we must suppose that
the grantor had a purpose in the more particular description which
he thought proper to give in the schedule, and that that purpose
was what he declares it to be, a more particular and full
description of the property conveyed. To withhold this meaning from
the
Page 139 U. S. 638
words of reference to the schedule is to deny to them all import
whatever, and that is justified by no rule of construction. If,
instead of referring to the schedule for a particular description
of the property, the grantor had followed the general description
with such words as 'namely,' 'that is to say,' or 'as follows,' and
set out in the body of the assignment itself the items enumerated
in the schedule, there could hardly have been a doubt but that the
preceding general words of description would have been restrained
and confined to the subsequent enumeration. And if that be so, how
does the fact that the schedule, instead of being incorporated in
the body of the deed, is on a separate sheet of paper annexed
thereto change in any manner the application of the principle? For,
the schedule being a part of the deed, we should read it as if
inserted in the body of that instrument."
The above cases, in our judgment, rest upon sound rules of
interpretation. To the same effect are
United States v.
Langton, 5 Mason 280, 288;
Guerin v. Hunt, 6 Minn.
375;
Wood v. Rowcliffe, 5 Eng.Law & Eq. 471;
McAlpine v. Foley, 34 Minn. 251;
Rundlett v.
Dole, 10 N.H. 458;
Belding v. Frankland, 8 Lea 67,
and
Scott v. Coleman, 5 Litt. 349.
See also
Burrill on Assignments, 5th ed., pp. 192-198.
Numerous authorities are cited for the plaintiff which are
supposed to announce a contrary doctrine. Most of them, however,
will be found, upon careful examination, to proceed upon the
peculiar wording of the instruments construed. Among these cases is
Bank v. Horn,
17 How. 157,
58 U. S.
159-160, where the question was whether a certain lot
was embraced in a cession made for the benefit of creditors under a
statute of Louisiana approved March 26, 1826, relating to the
voluntary surrender of property by insolvent persons. Laws of La.
1826, p. 136. That case does not bear upon the question here, for
the Court held it to be apparent that the lot in question was
intended to be included in the debtor's schedule, but was
imperfectly and erroneously described in it, and, by the local
statute, all the property of an insolvent petitioner mentioned in
his schedule was fully
Page 139 U. S. 639
vested in creditors from and after the cession and acceptance --
the duty of the syndic being to take possession of it and to
administer and sell for benefit of the creditors. "Consequently,"
Chief Justice Taney said, "if, under the ambiguous or erroneous
description in the schedule, this lot must be regarded as omitted,
it still passed by the cession." That was not, then, a case of
property being omitted altogether from a schedule made part of an
assignment and describing the property assigned. Equally
inapplicable is the case of
National Bank v. Bank of
Chicago, 94 Ill. 271, 279, where the question was whether the
claim of a particular bank was included in a deed of assignment for
the benefit of creditors which, after providing that the assignee
should, out of the proceeds of the trust property, if sufficient,
pay all the debts due "to the parties severally named in the
schedule of creditors, to be hereunto annexed," added, "it being
intended to include in said schedule the names of all the creditors
of the party of the first part, with the amount due to each of said
creditors." The bank referred to was not named in the schedule
subsequently prepared and annexed, but the court held that it was
not excluded from participation in the assets, observing that the
language last above quoted would not have been used if the purpose
had been to exclude some creditors from the list to be subsequently
made and incorporated in the schedule. It requires no argument to
show that this decision has no application to the case before us.
In support of the plaintiff's position, reference was also made to
Platt v. Lott, 17 N.Y. 478, and
Turner v. Jacox,
40 N.Y. 470. But of these cases it was said in
Holmes v.
Hubbard, 60 N.Y. 183, 185, that the instruments construed in
them were general assignments of all the property and effects of
the assignors for the payment of all their debts. And in the later
case of
Emigrant Industrial Savings Bank v. Roche, 93 N.Y.
374, 378, it was said that
"it is a rule for the construction of all written instruments
conveying property that if a general clause be followed by special
words, the instrument shall be construed according to the special
matter, and in the application of this rule it is held that the
general words of an assignment
Page 139 U. S. 640
should be restricted by a subsequent clause referring to a
schedule annexed for a more full description,"
citing
Wilkes v. Ferris and
Holmes v. Hubbard,
above cited. Similar criticism could be made upon other authorities
relied upon by the plaintiff. But it is unnecessary to extend this
opinion by an examination of them.
The plaintiff lays stress upon the Iowa statute relating to
assignments for creditors in force when Lane's assignment was made.
That statute provides that
"No general assignment of property by an insolvent, or in
contemplation of insolvency, for the benefit of creditors, shall be
valid unless it be made for the benefit of all his creditors in
proportion to the amount of their respective claims;"
that
"the debtor shall annex to such assignment an inventory, under
oath, of his estate, real and personal, according to the best of
his knowledge, and also a list of his creditors, and the amount of
their respective demands; but such inventory shall not be
conclusive [as] to the amount of the debtor's estate, and such
assignment shall vest in the assignee the title to any other
property belonging to the debtor at the time of making the
assignment; . . ."
that
"the assignee shall at all times be subject to the order and
supervision of the court or judge, and the said court or judge may,
by citation and attachment, compel the assignee, from time to time,
to file reports of his proceedings, and of the situation and
condition of the trust, and to proceed in the faithful execution of
the duties required by this chapter;"
that "no assignment shall be declared fraudulent and void for
want of any list or inventory as provided in this chapter;" and
that
"the court or judge may, upon application of the assignee or any
creditor, compel the appearance in person of the debtor before such
court or judge forthwith, or at the next term, to answer under oath
such matters as may then and there be inquired of him, and such
debtor may then and there be fully examined under oath as to the
amount and situation of his estate, and the names of the creditors
and amounts due to each, with their places of residence, and may
compel the delivery to the assignee of any property or estate
embraced in the assignment."
1 McClain's Ann.Stat.Iowa
Page 139 U. S. 641
(ed. 1880) 592, §§ 2115, 2117, 2123, 2124; (ed. 1888) §§ 3292,
3294, 3303, p. 849.
We do not perceive that these statutory provisions determine the
question before us. In the event of a general assignment of
property by one insolvent or in contemplation of insolvency for the
benefit of creditors, the debtor is required to annex to the
assignment an inventory of his estate, and the assignment is not
invalidated or rendered void for the want of such an inventory.
Whatever estate belongs to the debtor at the time of a general
assignment passes, by force of the statute, to the assignee. The
transaction contemplated in the Iowa statute, and termed a general
assignment, "is a disposition of
all the property of the
insolvent for the benefit of all his creditors."
Van Patten v.
Burr, 52 Ia. 518, 521. But the assignment in question here was
not a general assignment. It was only a partial one. The debtor
assigned, and from the terms employed by him could have intended to
assign, only the property particularly enumerated and described in
the schedule annexed to the instrument that passed the title. The
plaintiff concedes that partial assignments are permissible under
the statutes of Iowa.
Lampson v. Arnold, 19 Ia. 479, 486.
The statutory provisions just referred to have reference only to
general assignments.
For the reasons given, we are of opinion that the court did not
err in holding that the goods attached did not pass to Bock by the
assignment in question, and were subject to the writs that came to
the hands of the defendants, and the jury were properly instructed
to find for the defendants.
This disposes of the case without the necessity of considering
whether the assignment, if regarded as a general assignment of the
debtor's property, was or was not void under the statutes of
Iowa.
Judgment affirmed.