Colorado § 6-10-101 - Definitions.

§ 6-10-101. Definitions.

As used in this article, unless the context otherwise requires:

(1) "Person" means individuals, partnerships, associations, and corporations.

(2) "Property" means all goods, chattels and effects, real, personal and mixed property, money, rights and credits, and choses in action except property which is by law not subject to levy and sale under execution.

Source: L. 1897: p. 94, § 1. R.S. 08: § 174. C.L. § 6241. CSA: C. 12, § 1. CRS 53: § 11-1-1. C.R.S. 1963: § 11-1-1.

ANNOTATION

I. General Consideration.

II. Purpose.

III. Rules of Construction.

IV. Application.

V. Failure to Comply.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Assignment of Contractual Rights in Colorado", see 5 Rocky Mt. L. Rev. 30 (1932). For article, "Validity of the Colorado Assignment Act", see 18 Dicta 274 (1941). For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963).

Annotator's note. Cases material to § 6-10-101 et seq. decided prior to its earliest source, L. 1897, p. 94, § 1 et seq., have been included in the annotations to this section.

While state insolvency laws are invalid, states may enact statutes providing for the voluntary assignment of debts for the benefit of creditors. In re Carlson's for Music, Inc. v. Gould, 176 Colo. 172, 489 P.2d 1038 (1971).

This article is full and complete within itself, as to all matters pertaining to assignments, and the general law concerning conveyances has no application. Spangler v. Sanborn, 7 Colo. App. 102, 43 P. 905 (1895).

For cases decided prior to the passage of the general assignment statute of 1885, see Ray v. Raynolds, 8 Colo. 467, 9 P. 15 (1885); Cornforth v. Maguire, 12 Colo. 432, 21 P. 191 (1889).

II. PURPOSE.

The purpose of this article is to enable an insolvent debtor by conveying all his property to an assignee for the benefit of his creditors to be discharged from his debts. Clark v. Bright, 30 Colo. 199, 69 P. 506 (1902).

Hence, the assignment article is, in effect, a bankruptcy act. Clark v. Bright, 30 Colo. 199, 69 P. 506 (1902).

Provisions acceptable in relation to federal bankruptcy act. Provisions of this article by which debtors may voluntarily assign their assets for the benefit of their creditors, but without discharge of the debts, are perfectly acceptable in relation to the federal bankruptcy act. In re Carlson's for Music, Inc. v. Gould, 176 Colo. 172, 489 P.2d 1038 (1971).

Provisions providing for discharge not acceptable, the provisions in this article providing for discharge of an assignor have been suspended by the federal bankruptcy act. In re Carlson's for Music, Inc. v. Gould, 176 Colo. 172, 489 P.2d 1038 (1971).

The act does not compel a debtor to relinquish possession or control of his property to an assignee or trustee for the benefit of his creditors when he becomes unable to pay his debts. Hayden v. Wellington, 63 F. 6 (8th Cir. 1894).

The insolvent laws of Colorado are of a purely voluntary character; they do not constrain persons to execute an assignment in the event of insolvency. Schindelholz v. Cullum, 55 F. 885 (8th Cir. 1893); Kellogg v. Thropp, 4 Colo. App. 470, 36 P. 447 (1893).

A compulsory assignment for the benefit of creditors is unknown. Kellogg v. Thropp, 4 Colo. App. 470, 36 P. 447 (1893).

This article gives one permission to make a transfer of this nature, with certain prescribed formalities, and it provides for the due administration of the estate when it has been thus assigned. Hayden v. Wellington, 63 F. 6 (8th Cir. 1894).

III. RULES OF CONSTRUCTION.

This article is in derogation of the common law. Damaskus v. McCarty-Johnson Heating & Eng'r Co., 88 Colo. 279, 295 P. 490 (1931); Markoff v. Barenberg, 149 Colo. 311, 368 P.2d 964 (1962).

It must be strictly construed. Damaskus v. McCarty-Johnson Heating & Eng'r Co., 88 Colo. 279, 295 P. 490 (1931).

IV. APPLICATION.

Assignments made for the benefit of creditors must strictly comply with all of the required details of this article before creditors of the assignor are bound thereby. Markoff v. Barenberg, 149 Colo. 311, 368 P.2d 964 (1962).

Article must be strictly pursued. The statutory law of assignments is remedial, in derogation of the rights of creditors, and must, like any other statutory remedy, be strictly pursued. Burchinell v. Mosconi, 4 Colo. App. 401, 36 P. 307 (1894).

Its provisions are mandatory. Burchinell v. Mosconi, 4 Colo. App. 401, 36 P. 307 (1894); Damaskus v. McCarty-Johnson Heating & Eng'r Co., 88 Colo. 279, 295 P. 490 (1931).

Any important departure avoids and vitiates the whole proceeding. Burchinell v. Mosconi, 4 Colo. App. 401, 36 P. 307 (1894).

However, in order to vitiate an assignment, it must be found lacking in one of the essentials. Hunter v. Ferguson, 3 Colo. App. 287, 33 P. 82 (1893).

V. FAILURE TO COMPLY.

Failure of the debtor to comply with this article constitutes a common law, and not a statutory, assignment. McKelvy v. Striker, 108 Colo. 320, 116 P.2d 921 (1941).

Assignment may be valid as common-law assignment. An assignment for the benefit of creditors, although insufficient under this article, may be valid as a common-law assignment. Damaskus v. McCarty-Johnson Heating & Eng'r Co., 88 Colo. 279, 295 P. 490 (1931).

Common-law assignments are valid, independent of statutory assignments. McKelvy v. Striker, 108 Colo. 320, 116 P.2d 921 (1941).

Since no mention is made in this article of common-law assignments and nothing therein contained either specifically or by implication is susceptible to the construction that its sections were intended to be an exclusive substitute for common-law assignments. Damaskus v. McCarty-Johnson Heating & Eng'r Co., 88 Colo. 279, 295 P. 490 (1931).