Opinion of the Court. 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 Opinion of the Court. 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. 335." 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 Maryland, 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 restrictive 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 Opinion of the Court. 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 &c., 5 Mason, 280, 288; Guerin v. Hunt, 6 Minnesota, 375; Wood v. Rowcliffe, 5 Eng. Law & Eq. 471; McAlpine v. Foley, 34 Minnesota, 251; Rundlett v. Dole, 10 N. H. 458; Belding v. Frankland, 8 Lea (Tenn.), 67; and Scott v. Coleman, 5 Littell, 349. See also Burrill on Assignments, 5th ed. pp. 192 to 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 of Tennessee v. Horn, 17 How. 157, 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 perLaws 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 sons. Opinion of the Court. 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 Illinois, 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. Jaycox, 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 assign Opinion of the Court. ment 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 |