That every voluntary assignment of lands, tenements, goods, chattels, effects and credits, made by any debtor to any person in trust for the benefit of his creditors, shall be for the benefit of all the creditors of the assignor in proportion to their respective claims, except as hereinafter provided in this chapter; and every such assignment shall be proved or acknowledged and certified and recorded in the same manner as is prescribed by law in cases wherein real estate is conveyed.
History: Laws 1889, ch. 71, § 1; C.L. 1897, § 2827; Code 1915, § 283; C.S. 1929, § 7-110; 1941 Comp., § 23-110; 1953 Comp., § 27-1-10.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes. — The words "in this chapter," the first time they appear, were inserted by the 1915 Code compilers; the words "this chapter," the second time they appear, were substituted for "this act." Presumably, "this chapter" refers to 56-9-1 to 56-9-55 NMSA 1978, whereas "this act" refers only to Laws 1889, ch. 67, §§ 1 to 9, presently compiled as 56-9-1 to 56-9-9 NMSA 1978.
Cross references. — For recordation of real property, see 14-9-1 to 14-9-9 NMSA 1978.
For assignments by banks, see 58-1-73 NMSA 1978.
Property assigned under section not attachable. — The only thing required of the assignor is that he execute an assignment under the formalities required for the conveyance of real estate. The assignment having been "proved, or acknowledged, and certified and recorded," the legal title passes out of the assignor, and the property assigned is no longer subject to seizure under attachment proceedings. Schofield v. Folsom, 1894-NMSC-015, 7 N.M. 601, 38 P. 251.
Procedure mandatory on assignees. — This act was designed to form a complete code of procedure for parties wishing to abandon their estates to their creditors, and assignees must follow this procedure. In re Zeiger, 1909-NMSC-017, 15 N.M. 150, 106 P. 345.
Assignment must benefit all creditors proportionally. — Where a deed of assignment directs the assignee to pay, out of firm assets, an individual partner's creditor in preference to firm creditors, and to pay taxes of individual partners as well as of the firm, it is fraudulent as to creditors. Under such a deed, where the assignee carries on the business under the firm name and replenishes stock, and the assignor is employed to aid in the management, and the assignor has previously secured credit by misrepresentation and conducts himself with the apparent purpose of hindering creditors, the assignment is fraudulent to those extending credit through false claims. Marshall Field & Co. v. M. Romero & Co., 1895-NMSC-002, 7 N.M. 630, 41 P. 517, (case arose before section enacted).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Assignments for Benefit of Creditors §§ 3, 8, 27, 29, 55, 94, 100, 136 to 139.
6A C.J.S. Assignments for Benefit of Creditors §§ 48, 62, 64, 66.