38. (1888.) Where a claim has been assigned to a plaintiff, and he thereby acquires the legal title, but not the beneficial interest, the court may, where it will be in furtherance of justice, upon payment of costs, permit him to acquire the beneficial interest and proceed with the action. Hoagland v. Van Etten, 23 Neb. 462 (36 N. W. 755).

39. (1888.) Section 29 of the code is but a statutory enactment of the rule which has prevailed in courts of equity, that an action must be brought in the name of the party beneficially interested in the subjectmatter. A mere assignment of a claim, therefore, where the proceeds of the suit are to be paid to the assignor, will not entitle the assignee to maintain the action. He must possess the beneficial interest. Hoagland v. Van Etten, 23 Neb. 462 (36 N. W. 755).

40. (1898.) The assignee of a chose in action is the proper and only party who can maintain an action thereon. Crum v. Stanley, 55 Neb. 351 (75 N. W. 851).

41. (1903.) An assignor of a chose in action is not a necessary party to an action upon it by the assignee. Wood v. Carter, 67 Neb. 133 (93 N. W. 158).

42. (1903.) An attorney to whom claims are unconditionally assigned may prosecute an action in his own name for a recovery on such claims, without joining the original claimants. Huddleson v. Polk, 70 Neb. 483 (97 N. W. 624).

Evidence.

43. (1888.) In an action for a balance due for the assignment of a contract to furnish curbing to a city, where the de

fense is fraudulent representations by the assignor, as to the price at which the curbing could be purchased, evidence that the parties had together called upon the agent of a railroad company, who showed them a telegram from a quarry containing quotations of such stone, is admissible. Riley v. Melquist, 23 Neb. 474 (36 N. W. 657).

44. (1892.) Evidence produced held to sustain a judgment on claim for charges made by a railroad for freight, on the question of assignment thereof. Rosenbaum v. Russell, 35 Neb. 513 (53 N. W. 384).

45. (1897.) Evidence held to warrant a finding of an absolute assignment of a claim against a railroad for damages for killing live stock. Grand Island & Wyoming C. R. Co. v. Swinbank, 51 Neb. 521 (71 N. W. 48).

46. (1903.) An oral assignment in a reversion fund may be proved by oral testimony. Curtis v. Zutavern, 67 Neb. 183 (93 N. W. 400).

47. (1905.) Under the facts, held, that no competent evidence of an assignment of the judgment by the judgment creditor has been adduced. Ebel v. Stringer, 73 Neb, 249 (102 N. W. 466).

Instructions.

48. (1888.) In action for balance due on consideration for assignment of grad ing contract with city, where defense is fraudulent representations by assignor, instructions given held correct. Riley v. Mel quist, 23 Neb. 474 (36 N. W. 657).

ASSIGNMENT OF ERRORS.

See Appeal and Error, X.

In appeal in criminal prosecution, see Criminal Law, §§ 1045-1054.

In motion for new trial, see New Trial, §§ 131-142.

Parties, $119.

- Pleadings, § 120.

- Evidence, § 121.

VI. RIGHT OF ASSIGNOR.

In general, § 137.

VII. LIABILITY OF ASSIGNEE. In general, §§ 138-142.

CROSS-REFERENCES.

See, also, Assignment; Insolvency.
See, also, Chattel Mortgages.

Priority of chattel mortgage over assignment, see Chattel Mortgages, §§ 110-112.

Consideration for agreement to accept assigned estate in full payment of claims, see Contracts, § 45.

Chattel mortgage distinguished from assignment, see Chattel Mortgages, § 20.

Title acquired by assignee in bankruptcy, see Bankruptcy, §§ 22-24.

I. REQUISITES AND VALIDITY. A. Conveyances and Transactions Creating Trust.

Right to make assignment.

may

1. (1878.) An insolvent debtor make an absolute assignment of all his property, to a trustee, to be applied in payment of his debts; but in such case it is the duty of the trustee at once to apply the property to the purpose for which the trust was created. McCleery v. Allen, 7 Neb. 21 (29 Am. Rep. 377).

2. (1884.) One of two partners, with the consent of the other, may convey real estate of the firm by an assignment in the name of the firm. Sullivan v. Smith, 15 Neb. 476 (19 N. W. 620; 48 Am. Rep. 345).

3. (1891.) The right of a debtor, who is unable to pay his debts, to make an assignment of all his property to be equally distributed among his creditors in proportion to their several demands is a right to be upheld when possible and its exercise encouraged; and while he may be estopped to make such disposition of his property by judgment or deed, he cannot be, by mere conduct, or matter of estoppel in pais.

Commercial Nat. Bank v. Nebraska Nat. Bank, 33 Neb. 292 (50 N. W. 157). Constructive assignment.

4. (1891.) A conveyance of a stock of merchandise, and of realty of the debtor with all claims owing to the debtor, to one for the benefit of all creditors, held to be a deed of assignment. Clendenning v. Perrine, 32 Neb. 155 (49 N. W. 334).

5. (1903.) When an insolvent corporation transfers all of its assets to a creditor in settlement of a claim upon which the officers of the corporation are personally liable, and the transfer is for that reason held invalid, the transferee holds the property in trust for all creditors of the corpora tion, and is entitled to participate in the distribution of the assets. National Wall Paper Co. v. Columbia Nat. Bank, 68 Neb. 47 (93 N. W. 1004).

6. (1895.) The act in regard to voluntary assignments refers only to assignments intended as such; that is, when a debtor undertakes to make an assignment under the statute he must make it in accordance with it, otherwise it is no assignment and is void. But the rules relating to the construction of mortgages and other instru ments somewhat akin to assignments, but not intended as such, remain unchanged. Kilpatrick-Koch Dry Goods Co. v. Bremers, 44 Neb. 863 (62 N. W. 1105).

7. (1898.) A corporation resolved to remove its stock of merchandise to a distant city and effect a consolidation there with another corporation. Afterwards its managing officers determined, in order to avoid trouble with creditors, to retain a portion of the goods, sell them, and apply the proceeds to the payment of debts. No trust was created and no provision made for the

manner of the application of the proceeds. Held, That this arrangement did not constitute the goods a trust fund for the payment of creditors pro rata. German Nat. Bank v. First Nat. Bank, 55 Neb. 86 (75 N. W. 531).

- Mortgages as security.

8. (1886.) The turning point of cases of mortgages with possession of mortgagee, being held assignment for benefit of crediors is that the assignee is held to be a rustee for creditors. Bonns v. Carter, 20 Neb. 566 (31 N. W. 381); Id., 22 Neb. 495 (35 N. W. 394). [Overruled. 37 Neb. 816; 40 Neb. 765; 41 Neb. 35; 41 Neb. 67; 44 Neb. 863; 45 Neb. 119; 48 Neb. 48.]

9. (1886.) An instrument in writing, purporting to be a chattel mortgage, that gives possession of property to mortgagee with power to sell in usual course of business is an assignment for creditors; and not having been made in conformity to Statutes, is void as to creditors. Bonns v. Carter, 20 Neb. 566 (31 N. W. 381); Id., 22 Neb. 495 (35 N. W. 394). [Overruled. 37 Neb. 816; 40 Neb. 765; 41 Neb. 35; 41 Neb. 67; 44 Neb. 863; 45 Neb. 119; 48 Neb. 48.]

10. (1891.) Chattel mortgages to preferred creditors, given to secure actual indebtedness, in good faith, by an insolvent debtor, are valid and do not constitute an assignment, though they cover all the debtor's property, the value of which was slightly in excess of the debts secured. Hershiser v. Higman, 31 Neb. 531 (48 N. W. 272; 28 Am. St. Rep. 527).

11. (1892.) One D., being in failing circumstances and owing money to numerous creditors, executed separate chattel mortgages to six creditors upon his stock of merchandise.

The said mortgages were given at the same time and to secure the bona fide indebtedness of D. to the several mortgagees. It was the intention of all parties that the mortgagees should prorate in the proceeds of the mortgaged property, which intention was evidenced by the following recital in each mortgage: "This is made at the same time and is to prorate with mortgages made to" (here follows a description of each of the other mortgages). There being no trust created by the mortgages, the transaction did not amount to an assignment for the benefit of creditors. Hamilton v. Isaacs, 34 Neb. 709 (52 N. W. 279).

12. (1893.) Several chattel mortgages made and delivered simultaneously to secure different creditors of the mortgagor, the delivery being to one of the mortgagees, who in the transaction acts for himself and on behalf of all the other mortgagees, do not constitute an assignment for the benefit of creditors. Farwell Co. v. Wright, 38 Neb. 445 (56 N. W. 984).

13. (1893.) Where a chattel mortgage was taken by a creditor of the mortgagor upon all his property, its purpose being not only to secure a debt due the mortgagee, but also to secure other creditors of the mortgagor not named therein, whose rights are not expressly reserved from the operation of the assignment law of this state, such mortgage is void as an irregular, prohibited voluntary assignment. Stewart v. Stewart, 36 Neb. 558 (54 N. W. 828).

14. (1893.) Several chattel mortgages made and delivered simultaneously to secure different creditors of the mortgagor, the delivery being to one of the mortgagees, who in the transaction acts for himself and on behalf of all the other mortgagees, do not constitute an assignment for the benefit of creditors. Jones v. Loree, 37 Neb. 816 (56 N. W. 390).

15. (1893) An instrument in the form of a mortgage or bill of sale will not be held to be an assignment for the benefit of creditors unless it creates trust in favor of some person or persons other than the mortgagor or vendor. Costello v. Chamberlain, 36 Neb. 45 (53 N. W. 1034).

16. (1894.) A chattel mortgage is not void as constituting a prohibited assignment for creditors solely for the reason that it is made to secure the payment of debts to third persons as well as to the mortgagee. Davis v. Hilbourn, 41 Neb. 35 (59 N. W. 397).

17. (1894.) Where several chattel mortgages are made and delivered simultaneously, covering all the property of the mortgagor, to secure different creditors, leaving other creditors unsecured, such transaction does not constitute a voluntary assignment for the benefit of creditors, although there may have been an agreement among the mortgagees to share pro rata in the proceeds of the mortgaged property. Smith v. Phelan, 40 Neb. 765 (59 N. W. 562).

18. (1895.) Instruments in the form of chattel mortgages will not be held to constitute an attempted assignment for the

was

benefit of creditors because of the contemplated reciprocal trusts imposed on each mortgagee in favor of the others; because the mortgages provide that they shall prorate one with another; because at the time the mortgages were made the morgagor unable to redeem, conveyed all his property by the mortgages to secure debts greater than the value of the property; and because the parties contemplated that the mortgagees should take immediae possession, nor does the fact that the mortgages contained a power of sale in accordance with the statutory provisions for foreclosure render the transaction an assignment. Kilpatrick-Koch Dry Goods Co. v. Bremers, 44 Neb. 863 (62 N. W. 1105).

19. (1898.) A mortgage which does not in its inception contravene the assignment law will not be invalidated by a general assignment for the benefit of creditors, made by the mortgagor within thirty days after the execution of the mortgage. Blair State Bank v. Stewart, 57 Neb. 64 (77 N. W. 372).

20. (1899.) Instruments in the form of chattel mortgages will not be held to constitute an attempted assignment for benefit of creditors because of the contemplated reciprocal trusts imposed on each mortgagee in favor of the others; because the mortgages provide that they shall prorate one with another; because at the time the mortgages were made the mortgagor was unable to redeem, conveyed all his property by the mortgages to secure debts greater than the value of the property; and because the parties contemplated that the mortgagees should take immediate possession; nor does the fact that the mortgages contained a power of sale in accordance with the statutory provisions for foreclosure render the transaction an assignment. Sloan V. Thomas Mfg. Co., 58 Neb. 713 (79 N. W. 728).

21. (1899.) A chattel mortgage given by a debtor to several creditors, who by the terms of the instrument are to prorate in the proceeds of the mortgaged property, is not a voluntary assignment under the statute.

Skinner v. First Nat. Bank of Pawnee City, 59 Neb. 17 (80 N. W. 42).

Sale or transfer absolute in form. 22. (1890.) A sale of mercantile business by an insolvent firm to sureties, who were liable for the debts of the firm, is a sale and not an assignment if made in

good faith. Kaufman v. Coburn, 30 Neb. 672 (46 N. W. 1010).

23. (1890.) Where a firm engaged in the mercantile business, being indebted in about the sum of $18,000, for which A, B and C were separately liable as sureties for about equal portions of said debt, sold their stock of goods, including real estate and other property, to said sureties, who jointly assumed all the debts for which they were severally liable, such transaction was a sale and not an assignment, and if made in good faith would be sustained. Kaufman v. Coburn, 30 Neb. 672 (46 N. W. 1010).

24. (1890.) Where members of a firm sell their entire stock of mercantile goods to their sureties of certain indebtedness. the sureties assuming all obligations, it not appearing the sale was for the benefit of any one or more creditors, the sureties became absolutely liable for the debts assumed, whether the property received was sufficient to pay out or not. Kaufman v. Coburn, 30 Neb. 672 (46 N. W. 1010). 25. (1893.) Where a merchant in failing circumstances, intending to prefer certain creditors, executed a bill of sale, the vendee paying the preferred claims out of the consideration named in the bill of sale it was held, in an action of replevin by the vendee against the sheriff who had seized the goods on an order of attachment in favor of an unsecured creditor, that the transfer was not an assignment for benefit of creditors, that the vendee was the only person beneficially interested, and that the transfer was valid, regardless of whether the bill of sale was intended as a mortgage or an absolute transfer. Costello v. Chamberlain, 36 Neb. 45 (53 N. W. 1034).

26. (1894.) The bill of sale herein held to be a conveyance to secure or pay bond fide debts, and not void for being such a conveyance as to constitute a voluntary assignment within the true meaning or construction of the terms of the provisions of the assignment law. Meyer v. Union Bag & Paper Co., 41 Neb. 67 (59 N. W. 696). Provision as to application of estate to debts.

27. (1878.) A debtor cannot, when a debt is due, avoid the obligation of imme diate payment, nor can he, without the consent of the creditor, extend the period of credit. Therefore, if an assignment contains a provision, from which it appears that the debtor, at the time of its execution,