— On the second and eleventh days oi December, 1875, Bleckmann, Horn & Menkhaus, partners in the milling business, under the name of Bleckman, Horn & Co., were largely indebted and were insolvent. They then made two bills of sale, one of personal property and the other of ah interest in a steamboat to Grrothouse. Two of the partners also made to the same person a deed of the milling property. These •conveyances were all made to Grrothouse in trust for their creditors. The trustee gave bond as an assignee, inventoried the property, had the same appraised, allowed •demands and paid dividends thereon. He sold the real •estate without an order of court to Soltrop and Schegmann for $15,345. He resigned and the circuit court ■appointed two other persons assignees in his stead, who received the purchase money and made a deed of the real estate to these purchasers, who were in possession when this suit was brought. These deeds, and the bills of sale are alleged tobe fraudulent, as against the plaintiff, and this is a suit to set aside and cancel the same, for that reason.
The deed to the trustee was duly recorded on the third of January, 1876, and the sale of the real estate was made by the assignee on the twenty-fifth of that month. Subsequently, and in April, 1876, the plaintiff, Coleman, recovered a judgment before a justice of the peace for $12.60, a transcript of which was filed with the clerk of the circuit court upon which execution was issued and under it plaintiff purchased the real estate for $1,500. This is their title. Jeffries and Davis, the other plaintiffs, were also creditors of Bleckmann, Horn & Company, to the *355amount of about one thousand dollars. They did not prove up their demand before the assignee.
1. These bills of sale, as they are called, as well as the deed to the real estate, were all executed and acknowledged, as required by the assignment law. They were all parts of the same transaction and are to be treated the same as if one instrument. They constituted a conveyance of the property, real and personal, to the trustee, absolutely, for the payment pro rata of all of the debts of the assignors, and were properly regarded and treated as an assignment for the benefit of the creditors. Two public meetings were held by the creditors and these documents, as well as the release hereafter mentioned, were executed as the result of their deliberations. There is no evidence of any actual fraudulent purpose whatever on the part of the assignors’ trustee, or any of the creditors. If the assignment was fraudulent, it is not because of any evidence aliunde, but because it is fraudulent, asa matter of law, on the face of these deeds.
The contention is that the assignment is fraudulent, as to some of the creditors because the deeds require a release from creditors in order to participate in the fruits of the assignment. The three instruments are substantially the same. The title to the real estate, it would seem, was in Bleckmann and Horn, and they, with their wives, executed this deed. It recites the names of a large number of creditors of Bleckmann, Horn & Company, the execution and delivery of the two bills of sale; that said creditors had executed to the debtors a release from any and all indebtedness, and in consideration •of such release and of the agreement of said creditors to surrender or destroy the evidences of such indebtedness, and of one dollar paid by the trustee, conveys to him the milling property, in trust for the creditors, as follows: “First, to run and operate such mill and other property in such manner as shall be for the best interests of all the creditors of the said firm of Bleck *356mann, Horn & Company, whether hereinbefore enumerated, mentioned or not. Second, to sell and dispose of the said property herein and hereby conveyed'in such manner and on such terms, as a majority in number and amount of the said creditors may direct, at public or private sale, and, after deducting all reasonable costs and expenses attending the same, pay pro rata on the demands of said creditors * * * it being distinctly understood that this conveyance is made for the benefit of all the creditors of said firm of Bleckmann, Horn & Company, and not for the purpose of' giving any creditor a preference over another.”
It has been several times held in this state that an assignment, containing a stipulation for the release of the debtor as a condition of receiving any benefit, is void as-to the creditors not consenting thereto. Brown v. Knox, 6 Mo. 302; Drake v. Rogers, Id. 317; Bradley et al. v. Ames, 50 Mo. 387. And the same rule prevails in New York. Burrillon Assignments, section 192. But does this deed fall within the rule % Here a number of creditors, nearly all of them, did execute such a release-at and prior to the delivery of the deed of assignment. If' they saw fit to do this, to get what contingent dower interest the wives of the assignors might have in the real property, and to avoid the consumption of the property by way of costs in bankruptcy proceedings, as seems to have been the motive, that alone would not render the assignment fraudulent. The deed professes to be made for the benefit of all the creditors, whether named“or not. The-release by certain creditors is recited by way of consideration in part. But there is no stipulation that those only who have or shall sign the release shall share in the avails of the assignment. We do not understand the-deed to contemplate such a condition. The plaintiff, Coleman, was not recited as a creditor at all, but that was wholly immaterial. Our statute, then in force, declared that every voluntary assignment should be for the *357benefit of all the creditors of the assignor* in proportion to their respective claims. It was wholly unnecessary to mention the name or amount of debt of any creditor, "Those not mentioned were not prejudiced in the least.
Though Jeffries and Davis, the other plaintiffs, were mentioned, still they did not sign the release, nor were they bound so to do. These plaintiffs could have proved up their demands, as other creditors did, and have shared in the dividends. It seems to be contended that by so doing and receiving a dividend they would surrender whatever balance might be due on their demands. This is a misconception of the terms of the deed, as we have seen. It contemplates no such results as to those creditors who had not already, at the time of the assignment, executed the release.
2. While the assignee sold the property without an order of the court, "that does not render his sale fraudulent, nor does it affect the validity of the deed of assignment, and no other questions are presented by this record. It may be added that the statute, with respect to voluntary assignments, determines how the trust shall be administered, and in this respect supersedes details to that end in the deed of assignment.
The bill and the case made therein is without merit. The judgment of the circuit court should be affirmed. It is so ordered.
All concur.