
    Nelson Case, Garnishee, etc., v. Margaret Ingersoll.
    1. Assignments, for benefit of creditors. An assignment of property for the benefit of creditors, is not necessarily and ■per se void.
    2. Assignee — Attachment, Garnishment. Property held by an assignee under a valid assignment for the benefit of creditors, is not subject to attachment or garnishment for the debts of the assignor.
    
      JError from Labette District Court.
    
    Ingersoll, a judgment-creditor, obtained an order of attachment against W. M. Johnson, a judgment-debtor, and caused Nelson Case to be summoned as garnishee. Written interrogatories were filed as required by § 503 of the civil code. Case answered, alleging that Johnson had made an assignment to him (Case) of all his property for the benefit of creditors; admitted that he had possession and control of such, property, and denied having any other property of Johnson’s under his control, and denied all indebtedness. -His answers are set forth in full in the opinion. Said “ assignment deed ” is the same as that mentioned and somewhat discussed in the preceding case of Johnson v. Laughlin, (ante p. 859.) The record is meager and disconnected. The court below held that Case’s answers disclosed such facts as rendered him liable as garnishee of Johnson; that the assignment-deed from Johnson to Case “ was fraudulent and void as against the right of said plaintiff,” and made an order requiring Case, the garnishee, to “pay to the' clerk of this court, for the use of said plaintiff,” the amount of plaintiff’s claim and costs, within twenty days, “ and that the amount so paid should operate as a credit to said Nelson Case upon settlement of his accounts as assignee of the said ~W. M. Johnson.” Case excepted, and brings the case here by petition in error for review.
    
      Nelson Case, plaintiff in error, in propria persona,
    
    submitted the same views in support of the validity of the “assignment-deed” as he had submitted as counsel in the case of Johnson v. Laughlin, .as’ - pp. 361, 362.
    
      Bettis cf Kelso, for defendant in error:
    1. The court below held the assignment from Johnson to Case, set up in the garnishee’s answer, “ to be fraudulent and void, as against the rights ” of the defendant in error. That the paper purporting such assignment was fraudulent and void, as against the rights of creditors, will appear from its face, for the reason that it contains no description whatever of any property sought to be assigned, nor does it have any schedule thereto annexed. Some description of the property intended to be conveyed must be made before anything can pass as against the rights of creditors; and the description should be sufficiently explicit to enable the assignee to take possession of the property and things assigned. Bur. on As., 262; Qroio v. Buby, 5 Mo., 484; Bellamy v. Bellamy, 6 Fla., 62. This doctrine is not changed by our statute, but is on the contrary strictly enjoined: §2, ch. 6, Gen. Stat. The common law. requires a description : 2 Gr. Cruise’s Big., p. 268, 2d ed.; Hill on Heal Estate, ch. 83, §§16 to 20. Which description must be certain: Haven v. Oram, 1 N. H., 93; Canning v. Pinkham, id., 363; 4 B. Mon., 211.
    A deed or assignment may be good between the parties thereto, which would be absolutely void for uncertainty as against creditors not consenting. The tendency of every assignment is to hinder and delay creditors; and the reservation of the residue after the payment of the debts in this instrument, coupled with the powers granted to the assignee to compound debts, sell on credit, etc., and the inducement stated that the assignor is at present unable to pay his debts, show an evident intention on his part not to secure his creditors alone, but to hinder and delay them, and to deprive them of the ordinary course of the law for the collection of debts; and such an intent as this is guarded against by the statute of frauds, which provides that “ Every gift, grant, or conveyance of lands, made with intent to hinder or delay or defraud creditors, shall be deemed utterly void and of no effect.” Oh. 43, § 2, Gen. Stat.
    2. The garnishee cannot maintain error in this case, because he is not prejudiced. Error can only be assigned by one who is prejudiced by the error. The judgment is that the assignee pay a portion of the trust fund in his hands to the liquidation of one of the very debts for the payment of which the fund purports to have been assigned. It takes nothing from Case as an individual, and the order of the court to pay this money is a complete protection to him against the demands of other creditors. Hence Case is not prejudiced, and cannot assign error. Civ. code., §505; Case v. Hannahs, 2Kas., 490; Hammitt v. Coffin, 3 G. Greene, 205.
    Neither can Johnson assign error. The judgment of the court carried out the professed intent of the instrument of assignment. Johnson was not a party to the action in the court below. He had no interest in the money ordered to be paid by Case. On the contrary the judgment of the court was beneficial, as it would extinguish his debt.
    "Who then could have availed themselves of this error, if there was any ? Clearly, no one but creditors of Johnson, and they do not seek the reversal of the judgment. The. only duty assumed by Case was to pay Johnson’s debts to the extent of the trust fund, under the orders of the court; and if, by the operation of law that fund is diminished, no possible right possessed by him as an individual, or as an assignee, can be impaired.
   The opinion of the court was delivered by

Valentine, J.:

A judgment was rendered before a justice of the peace of Labette county in favor of Margaret Ingersoll, the defendant in error, and against W. M. Johnson, (assignor of plaintiff in error,) for $200 and costs; a transcript of the judgment was filed in the office of the clerk of the district court of said county; execution was issued thereon and returned^ unsatisfied; an affidavit of J. D. McCue, one of the attorneys of Margaret Ingersoll was filed in said clerk’s office, setting forth that he had good reason to believe and did believe that Nelson Case (the plaintiff in error) had property of and was also indebted to said ~W. M. Johnson; an order of garnishment was issued and served on said Case; written interrogatories were also filed in said clerk’s office, and served on said Case. In answer to said interrogatories said Case filed the following:

“ 1. I have both personal and real property under my control which was assigned to me by the said W. M. Johnson for the benefit of his creditors. Said real property consists of town lots in Oswego, and interests in buildings and lots. Said personal property consists of said office furniture, and a few choses in action.
“ 2. I am not indebted to said W. M. Johnson in any sum whatever.
“ 8. The said assignment from W. M. Johnson is of all his property, personal and real, not exempt by law from attachment, for the benefit of all his creditors in proportion to their respective claims. The appraised value of said property is about $11,500. Said assignment was made April 21st, 1870.”

Upon this answer the court below found “that said assignment was fraudulent and void as against the rights ■of said plaintiff,” and ordered and adjudged that said Case pay said judgment. No copy of the assignment is given with the answers of the garnishee. If the evidence submitted to the court below showed that said assignment was void for any reason, then of course the judgment or rather order of the court below was correct; but if it did not so show, then the order war erroneous. There does not. seem to have been any evidence submitted to the court below except the said answers of the said garnishee. In fact, under the statutes no other evidence could be submitted except by consent of parties: (Civil code, Gen. Stat., 728, §503; id., 669, §215; id., 670, §218; Drake on Attachment, § 659, and cases there cited.) The ■only remedy of the plaintiff, if the garnishee failed to answer, or if his answers were not satisfactory, was to sne the garnishee; (civil code, § 219.) His remedy was not to introduce other evidence than that of the garnishee to show that the garnishee had property of or was owing the judgment-debtor; but it was to commence an original and independent action. For these reasons, if reasons were necessary, we cannot presume, against the record, that any evidence except the answers of the garnishee was heard or examined by the court below. We think the court below erred. An assignment of property for the benefit of creditors is not necessarily and per se void. (Gen. Stat., ch. 6,p. 94, et seq.) And there is nothing in the answers of said garnishee that shows that said assignment is void.

It seems scarcely necessary for us to say, that property held by an assignee, under a valid assignment for the benefit of creditors, is not subject to attachment or garnishment for the assignor’s debts.

We take no notice of “Exhibit B,” appended to the record, but which does not seem to form any part of the record. It purports to be a copy of a deed of assignment from W. M.-Johnson and wife to Nelson Case; but it is-not in any manner authenticated, and does not seem to form any part of the case.

The judgment and order of the court below against Nelson Case, garnishee, is reversed, and the case remanded for further proceedings.

All the Justices concurring.  