60 Neb. 431 | Neb. | 1900
A decision reversing the judgment of the lower court was rendered in this case November 23, 1899, and is reported in 59 Nebr., 319. A rehearing being granted, we again have the case before us for consideration.
We were moved to reinvestigate the case solely because of a doubt as to the correctness of the position taken in the first opinion, as to the effect or consequence of a failure to have filed for record the deed of assignment within twenty-four hours of its execution as provided by section 6, chapter 6, Compiled Statutes, 1899. Upon the other propositions announced in that opinion, we are quite satisfied of their correctness.
It was said in the first opinion, p. 320: “Another contention of the defendants is that the assignment was void because of the failure to record the deed within twenty-four hours from the time of its execution. Our view of the matter is that the title to the property passed to the assignee when the deed was delivered. * * * The failure to file a deed of assignment for record within the time fixed by statute would not, ipso facto, divest the assignee’s ownership of the trust estate.”' A more careful investigation of the subject in the light of the statutory provisions and prior utterances of this court leads us to the view that, while the conclusion reached wras the correct one, we were in error in the position taken on the proposition mentioned, and that in this regard we incorrectly stated the law as applied to the sections of the
The rule of construction herein announced is not a new one in this jurisdiction. In Wells v. Lamb, 19 Nebr., 355, in construing the meaning of the word “execution” found in section 6 heretofore quoted, it was held that delivery of the deed of assignment and surrender of control over it was included in the meaning of the word, as well as the act of making and signing the instrument. Says the court, through Judge Reese in the opinion, p. 356: “It could not be claimed that if a debtor should write out and sign an instrument of assignment, but being uncertain as
In Lancaster County Bank v. Horn, 34 Nebr., 742, it was held that the provisions as to recording were to* be construed as a registry act, and being valid between the parties, if actual notice was imparted to the others of the assignee’s possession and title, the failure to record the instrument would not avoid the assignment as to all parties having such actual notice. The rule thus announced has not since been followed, and was in direct terms overruled in the case of Sager v. Summers, 49 Nebr., 459.
In Connor v. Omaha Nat. Bank, 42 Nebr., 602, 606, in speaking with reference to section 104 of the assignment laws of Wyoming, reading as follows, “An assignment for the benefit of creditors is void against creditors of the assignor, and against purchasers and incumbrancers in good faith and for value, unless it is recordéd and unless the inventory required is filed pursuant to* this chapter within twenty days after the date of the assignment,” Ragan, C., uses the following language: “If it can be said that this evidence was sufficient to establish that an inventory was made and filed by Prance as required by section 100, it still falls far short of establishing that Prance, within twenty days from the date he made the assignment for the benefit of his creditors, made and filed the inventory required by section 100. The question then is whether the making and filing, within twenty days
The sixth paragraph of the syllabus in Maul v. Drexel, 55 Nebr., 446, holds that “An assignment of personal property for the benefit of creditors should be filed in the office of the county clerk of the county where the assignor resides within twenty-four hours after its execution, and is not void because not filed for record with the register of deeds within that period.” Says Norval, J., writing the opinion, p. 455: “This assignment conveyed no real estate, as the assignors owned none, but personal property merely, and is not invalidated because not recorded by the register of deeds. It was filed in the office of the county clerk of Douglas county within twenty-four hours after its execution, which is in compliance with the strict letter of the statute, and is sufficient.”
In harmony with the now settled rule of this court upon the subject are the following: Summers v. White, 71 Fed. Rep., 106, wherein the assignment laws now under consideration were similarly construed; Lookout Bank v. Noe, 86 Tenn., 22; New v. Reissner, 56 Ind., 118; Eden v. Everson, 65 Ind., 113; Driesbach v. Becker, 34 Pa. St., 152; Cannon v. Deming, 3 S. Dak., 421; Gridley v. Meyers, 76 N. W. Rep. [Minn.], 41.
The views hereinbefore expressed, to the effect that a deed of assignment is avoided by reason of a failure to file the same within twenty-four hours after its execution, leads us to no different conclusion than heretofore reached as to the final disposition of the case at bar, and the judgment of reversal must remain.undisturbed.
The case comes to us for a review of the ruling of the trial court on the demurrer interposed to the plaintiff’s petition. The petition shows that the deed of assignment was executed August 1, 1894, and filed for record August
In the opinion heretofore rendered it is said, p. 321: “According to the allegations of the petition, the seizure of the stock of merchandise in question was a lawless act, —an act done without color or claim of right; and the plaintiff might, therefore, on his mere possessory title, sue the defendants for conversion. Whatever may be the infirmities of Miller’s title, the defendants, even if they were creditors of the Muir-Cowan Company, could not lawfully seize the assigned property without legal process. The judgment of the district court is reversed, and the cause remanded for further proceedings.” We think the views thus expressed correctly state the law, The judgment of reversal is adhered to.