1 Indian Terr. 495 | Ct. App. Ind. Terr. | 1897
(after stating the facts). The assignment of error involved the validity of the deed of signment. The plaintiff below, the Martin-Brown Comp: and the interpleaders M. J. McKinney, the Ft. Worth Cl Company, and Frank Herman & Co., filed a demurrer to interplea of Lee Cruce, on the_ ground that the deed oi signment of Morris & Nunn, under which he claimed the tached property, was void on its fape. The deed of as. ment is as follows: “Know all men by these presents, we, J. G. Morris and E. O. Nunn, composing the firr Morris & Nunn, of Ardmore, Indian Territory, for an consideration of the sum of one dollar to us in hand pal Lee Cruce, and the further consideration hereinafter tioned, have this day sold, conveyed, and delivered unt said Lee Cruce the following'described property, to wit: that certain stock of goods, wares, and merchandise, fixtures situated in the storehouse and wareroom now pied by us as a place of business on the north side of street, in the town of Ardmore, I. T., consisting oi goods, groceries, hats, caps, boots, queensware, clot] hardware, woodenware, fixtures, etc.; also, six cases o: goods now in the Gulf, Colorado and Santa Fe Railroa' depot, at Ardmore, consigned to us. This deed is giv< trust for the following purpose: I desire the sai' Cruce to pay, of the proceeds of said property, a n $600.00, due J. A. Mays 30 days after the 20th day o: gust, 1892; also a note of $800.00, due to said J. A. M: days after August 20th, 1.892, next, to pay R. L. B: man a debt of $2,475; next, to pay what I owe Tom Su Mrs. Mattie Dobbings, and-Webb; next to pay t| mainder that I owe to said J. A. Mays; next to pay Ballard-BurnettHat Co. what we owe them; the restj paid to our other creditors, according to their claims, said Lee Cruce is to be controlled in the management ar of said property by the assignment laws now in force
Counsel for appellants cite section 305 of Mansfield’s est of the Laws of Arkansas, put in force in the Indian ritory by act of congress, which provides “that in all s in which any person shall make an assignment of any perty, whether real, personal, mixed, or choses in action the payment of debts, before the assignee shall bo en-sd to the possession, sell or in any manner manage or ¡rol any property so assigned, he shall be required to in the office of the clerk of the court exercising equity diction a full and complete inventory and description of property, and also make and execute a bond to the : of Arkansas in double the estimated value of the prop-assigned.” This statute is, as counsel contend, manda- and contains an explicit direction that the assignee not be entitled to sell, or in any manner manage or con-any property so assigned, until he shall have filed the titory and bond required. Counsel insist that a deed h permits the assignee to sell or in any manner control ssigned property before he files a bond and inventory avenes this statute, and is void, and the words in the which declare that the assignors “have sold, conveyed, elivered” the stock of goods to the assignee render eed void on its face. Counsel for appellants contend y this provision in the deed of assignment the posses-f the stock of goods was transferred to the assignee oment the deed was executed, and before the filing of |ventory and bond as required by the statute; that the if the filing of a bond and inventory is excluded by the [terms of the instrument; and that the execution of the [and the possession of the property by the assignee ¡simultaneous acts. The words used were such as were ed to pass the title from the assignors to the assignee,
The second assignment of error by counsel for aj lants is to the effect that £ £ the court erred in holding Mays and Bridgeman were not partners with the defenJ Morris & Nunn. ” The case at bar was tried by the coil jury having been waived. At the request of the appelij
It will thus be seen that the court found, as a matter let,- that Mays and Bridgeman were not partners in the pantile concern of Morris & Nunn. In determining |ers of fact, appellate courts regard the findings of fact íe trial judge in the same light as the findings of a jury, ferial court, a jury having been waived, was the judge of [acts, and, with competent evidence on both sides, had lame right to determine them as is accorded to a jury.
The third assignment of error was as follows: “ Th| court erred in holding that the interpleader, Lee Cruce did not have any knowledge of the fraud of defendant! Morris & Nunn at the time the deed of assignment wa executed, and in sustaining the deed of assignment be cause of the want of such knowledge.” This assignment error embraces two propositions: First,- that Lee Cruce, tl assignee, did not have any knowledge of the fraud of tl assignors at the time the deed was executed; second, that tl court erred in sustaining the deed because of the want such knowledge. The first proposition is one of fact, ar the finding of-the trial court will not be reviewed by th| court, for the reasons already stated in this opinion. Tl second proposition is one of law, and will be carefully co| sidered. Counsel for appellants call attention to the faj that the legislature of Arkansas, by an act approved Marq 31, 1887, provided that “any assignment for the benefit creditors may be contested or attacked for fraud by ail creditor, and proof of fraud on the part of the assignor shfj be sufficient to invalidate the assignment whether the signee knew ib or not”; and counsel contend that this act lates to ‘ ‘the pleadings and practice and forms of proced ings in civil actions, ” and it was therefore put in force in t| Indian Territory by the act of congress approved March 1889, which established the United States court in the dian Territory. We do not agree with counsel as to tl contention. The act of the Arkansas legislature of Mar 31, 1887, does not relate to practice, pleadings, or forms procedure. It is positive and- affirmative legislation, changes an important rule of decision in Arkansas; - butj has never been put in force in the Indian Territory.
Counsel for appellants do not contend that Lee Crul the assignee, at the time he accepted the deed of assil ment, actually participated in the fraudulent conspiracy!